Bardwell v. Town of Jamaica

The opinion of the court was delivered by Hebard J. The defendant requested the court to charge the jury “ that if the place where the accident happened was without the limits of the bridge, although in the road by the side of it, the plaintiffs were not entitled to recover.” It is usual for the court to instruct the jury upon every point requested, when there is evidence tending to establish the position contended for. But this case discloses no testimony tending to establish any such fact. The case finds that the testimony tended to prove that the plaintiffs’ mare broke through the bridge, and no other testimony upon that point is alluded to in the case. This proof, then, corresponds with the declaration substantially. But, upon another point, the court gave instructions to the jury, of which the defendant complains. The court charged the jury that, in order to recover, the plaintiffs must prove that the injury happened to the mare in consequence of the insufficiency of the bridge, or the abutments of the bridge. We think that charge correct. The abutment, in the sense in which the term is, ordinarily, used, is a part of the bridge. The abutment has such an immediate connexion with the other parts of the bridge, that, in speaking of a bridge, in connexion with the use for which bridges are erected, we can no more exclude the abutment from our minds than the flooring, or the frame-work, of the bridge. The defendant further excepts to the charge of the court in relation to notice of the insufficiency of the bridge, to which the town was entitled. The statute makes towns liable for all damage that happens by reason of the insufficiency of any road ; and no exception or provision is con [443] tained, in the statute, requiring notice to be brought home to the town. If notice is required, of the insufficiency of a road, before the town is liable, there must be some provision in the statute defining what shall be deemed notice, and to whom, and in what manner, notice shall be given, to be legal. Without such provision it would be difficult to give any notice that the law would regard. The defendant also complains of the charge in reference to the damages. The jury must have found that the injury was sustained bylthe fault of the town, without any fault on the part of the plaintiffs, or they would not be entitled to recover any damage; and the charge of the court puts it upon this ground. The primary cause of the death of the plaintiffs’ mare being the fault of the town, the plaintiffs are entitled to recover the whole amount of the damage, unless it has been increased by their subsequent negligence or misconduct; — and this was left for the jury to find. Judgment affirmed.