Howe v. Town of Castleton

The opinion of the court was delivered by Isham, J. The Comp. Stat. p. 150, sec. 32, provides, “ that no “ person shall recover against any town, damages sustained on ac- “ count of the insufficiency or want of repair of any highway, “ which has arisen in consequence of the passing on such highway, “ of any carriage bearing a load, exceeding ten thousand pounds in “ weight.” Under this provision of the act, if the load does not exceed that weight, the risk of accidents, arising from the insufficiency of the highway, rests upon the town, and they are responsible for all damages arising from its insufficiency, or want of repair. If the load exceeds that weight, however insufficient the road may be, or whatever may be the degree of care and prudence exercised on that occasion, and however directly the injury may result from the insufficiency of the road, no action whatever can [167] be sustained. Towns are not obliged to construct roads, or keep, them in repair, for the transportation of loads thereon, exceeding that weight. The only question in the case is, was this plaintiff transporting over this road a load exceeding that weight, when this injury was sustained ? This is to be determined, by ascertaining the intention of the legislature in the use of the word “ load” as used iq the act. In the construction of statutes, its language is to be understood in its plain and ordinary signification, particularly if they are words of common use. 1 Kent’s Com. 514. Ordinarily, when mention is made of a load, reference is had only to the material placed upon the carriage, and which is designed for removal from one place to another; not to the carriage itself, or to anything used or employed simply as means, by which the removal or transportation of that material is effected; and in this sense, we think, the word as used in the statute, should be construed. The carriage itself, from the phraseology of the act, is evidently not to be included as a part of the load; the same reason will exclude the rack; the purpose for which the rack was used, rendered it a part of the .carriage itself. Both were used for the same object, and were equally necessary to sustain and remove the stone, which was placed upon the carriage for removal to its placof destination, and which really constitutes the load, within the meaning of the act. For the same reason, also, the weight of the driver, or person having charge of the horses-and load, should not be taken into the account, in ascertaining its weight. His services and care are one of the means used in the transportation of the load, and his position on the carriage may have been necessary in the exercise of proper care and prudence in the government and management of his team. If these matters are excluded, the case finds that the load did not exceed the weight limited by statute. The plaintiff has consequently a right to regard the town as responsible for such damages as he has sustained from the insufficiency of the road, or its want of repair; and as the referees have found as facts in the case, that the road was insufficient, that the injury arose from that cause, aud that there was no want of care and prudence in managing the team and load, we think the plaintiff is entitled to a judgment on this report. The judgment of the County Court is affirmed.