Folsom v. Town of Underhill

Kellogg, J. To sustain the plaintiff’s action in this case, it-was necessary for him to establish the fact that the highway or bridge where he received the injury of which ho complains was a highway or bridge which the town of Underhill was, at the time of receiving the injury, liable by law to keep in repair. Nq question was made on the trial in respect to the insufficiency and want of repair of the bridge, as alleged in the plaintiff’s, declaration, but it was claimed that the road in question never was a highway which the town was liable to keep in repair. The plaintiff did not claim that this alleged highway had been laid out and opened for public travel in any such manner as was prescribed by the statute, but insisted that it became a public highway by a dedication of the land by the land owners to the public use, and by a recognition, acceptance, and adoption of the road as an existing public highway by the agents or officers of the town. The opening of a road by the land owners to public use, and its use by the public without interruption, and the allowance by the land owners of repairs upon it at the public expense are facts which would tend strongly\to show the intention to dedicate the land by the land owners to the use of a public highway. If this intention was unequivocally manifested, the dedication, so far as — 587 — the owners of the soil were concerned, was complete; and if the kind was accepted and used by the public in the manner intended, the owner and all claiming in his right would be precluded from asserting any ownership inconsistent with such use. Whether the dedication was complete as against the owners of the soil was a conclusion of fact to be drawn by the jury from the circumstances of the particular case, — the sole question as against them' being, whether there was sufficient evidence of an intention on their part to dedicate the land to the public as a highway. Angell on Highways, 113, et seqr. But neither the mere fact of a dedication of land to the public as a highway nor the use of the land by the public as a road for public travel, will be sufficient to impose upon the town a duty to keep the road in repair as a highway. The clearest or most unequivocal act of dedication would be wholly ineffectual without an acceptance of the dedication by the town, acting through its proper officers. Hyde, Adm’r, v. Jamaica, 27 Vt. 454. Where a road has been dedicated, accepted, and adopted in this manner as a public highway for travel, the town becomes liable for its insufficiency or want of repair although it is a road which was never opened for public' travel in the manner prescribed by the statute. Blodgett v. Town of Royalton, 14 Vt. 294. The material question in this, case, therefore, is this: — Are the facts relied upon by the plaintiff to show an acquiescence in, or adoption of, this road as an existing public highway legally sufficient to support that conclusion? There could be no acceptance or adoption of this^road by the town acting through its proper officers without an intention on" their part to accept or adopt it as a public highway, and the question, whether there was such an intention on their part or not, was one which was to be determined by the jury upon the facts established by the evidence. If the facts were undisputed, their sufficiency to warrant the conclusion that the i’oad was adopted as a public highway would be a question of law. It is claimed on the part of the defendant that the court did not instruct the jury what facts would constitute such adoption. The intention to adopt the road as a present existing highway, must be manifested by acts of the town authorities, and the acts — 588 — relied on in this ease were the expenditure of money and labor upon the road, and the including it in the rate bills of the highway surveyors as a public road on which the highway taxes are to be expended, and, in connection therewith, the leaving it open for public travel and use as a common highway. A single or isolated act of this character might not manifest the intention to recognize and treat this road as a public highway so fully and satisfactorily as a series of acts of the same or a similar character and tendency, but all such acts were proper to be submitted to the consideration of the jury under appropriate instructions. We interpret the statement in the bill of exceptions that the court instructed the jury that “ if the town did the acts relied on “as proof of the adoption-of this road, and regarded and treated “ this road as a highway, then it became a highway which the “ town was liable to keep in repair,” as conveying the meaning that if the town did the acts with the intention to regard and treat this as an existing highway, then this road became thereby a highway adopted by the town, which the town was liable to keep in repair. In this view of the case, we think that the jury were sufficiently and properly instructed in respect to the facts which would constitute a sufficient adoption of the road as an existing highway. In reference to the requests made to the court by the defendant for instructions to the jury in respect to the work done by the highway surveyors upon the road, we concede that a highway surveyor cannot lay out or adopt highways. The power to lay out, open, alter and discontinue highways is vested by the statute in the selectmen of the town, who are also intrusted with the general supervision of the concerns of the town ; and with the particular' duty of making and altering highway districts and expending of highway taxes. Acts of the selectmen appropriating money or labor to the repair of an existing road within their town manifest an intention to adopt and treat the road as an existing public highway. The injury to the plaintiff happened in July, 1862. The plaintiff’s evidence tended to prove that Porter, one of the highway surveyors of the town, in 1858, by order of the selectmen of the town, worked out a small ¡sum appropriated by them to be expended on this road, and that, — 589 — in 1860, a portion of the highway taxes were worked out on this road by Papineau, another highway surveyor of the town, •and that, in 1861, Woodworth, another highway surveyor of the town, worked out a portion of the highway taxes on this road, but both Papineau and Woodworth acted without instructions from the selectmen, and this road was not specified in their bills as being within their highway district. In fact, none of the highway districts of the town were bounded or numbered prior to 1861. It did not appear that any of the work done by these highway surveyors was done upon the bridge where the injury to the plaintiff happened; but their work was work of repairs on an existing road, and not work of construction on a new road, because it appears that the whole of this work was done within the limits of a road already existing, and not on any new road. The evidence tending to show that the work of Porter, in 1858, was authorized by the selectmen was clearly proper for the consideration of the jury as tending to show a recognition and adoption of the road as a public highway by the selectmen, and the evidence that Papineau and Woodworth, who were the highway surveyors in 1860 and 1861, respectively, worked out portions of the highway taxes committed to them on this road, although without any instructions from the selectmen, was proper to be considered in connection with any prior act of the selectmen recognizing this road as a public highway, or with any evidence that their work on this road of any part of the highway taxes was known to, and not disapproved by, the selectmen. It is claimed by the defendant that if the jury were justified by the evidence in finding that the road was adopted by the town as a highway, the bridge was not so adopted ; and the defendant requested the court to instruct the jury that the work done by Porter, Papineau and Woodworth did not, under the circumstances stated, amount to, or tend to prove, such adoption of the bridge. It was not necessary that any work should have been done upon the bridge under the authority of the selectmen to warrant the jury in arriving at the conclusion that it was adopted as a part of the highway. If the bridge was necessary to con — 590 — nect the portions of the road on each side of it upon which repairs had been made under the authority of the selectmen, and the evidence in respect to those repairs was sufficient to satisfy the jury that it was the intention of the selectmen to adopt the whole road, including the bridge, as a public highway, this would be all that would be requisite to justify the conclusion that the bridge was adopted as a part of the highway ; and the evidence in respect to the work of the highway surveyors was entitled to consideration, in connection with the other evidence, as tending to this conclusion. We find no error in the refusal of the court to instruct the jury as requested by the defendant in respect to the work done by Porter, Papineau, and Woodworth, or in the instructions given to the jury on this part of the case. The defendant objected to the admission of the declarations of the selectmen as testified to by the witnesses Howe and Dixon, and to the effect given in the charge of the court to these declarations. Howe was the owner of the coach and horses which the plaintiff1 was driving at the time of the injury complained of, and testified that on the second day after the accident, Mead, one of the selectmen, and Church, the town agent, of the town of Underhill, called on him and inquired of him the extent of the injury to his coach and horses, and offered to settle with him for the damage, and, at the same time, inquired of the plaintiff as to the injury to him, and proposed to settle with him. Dixon testified that, the next day after the accident, Hapgood, another of the selectmen of Underhill, while at work with a number of men under his charge in repairing the bridge, told him (Dixon) that he (Hapgood) had, before the accident, been requested by Mead, his fellow selectman, to repair the bridge, and that he blamed the other selectmen because they had not repaired it. These declarations of the selectmen were made subsequent to the injury, and were, at the utmost, only subsequent admissions of liability. They were not in themselves acts recognizing the road as a public highway at the time the accident happened, and were not so treated by the court; but the court instructed the jury that these declarations, in connection with the actions of the.selectmen, so soon- after the accident, in making repairs on — 591 — the bridge, and in calling to settle tlie claims of Howe and the plaintiff for damages, tended to show that the town by its officers, before the accident, regarded the road as a public highway which the town was liable to keep in repair at the time when the accident happened, and should be considered only in that light. We regard the admission of these declarations, and the charge of the court in respect to the same, as being erroneous. The fact that the selectmen made a proposition to settle the damages occasioned by the accident immediately after it occurred, is in itself of a very inconclusive character, and it would be a proceeding of dpubtful policy, if not pregnant with mischief, to treat a proposition for a settlement, when made by public officers, as an admission of liability. The act of the selectmen in making repairs upon the bridge so soon after the accident, was, in our opinion, admissible as evidence, not as amounting to a recognition or adoption of the road by a retrospective effect, but as an act tending to show that the selectmen had previously recognized and adopted it; but the declarations made by Hapgood, the selectman, at that time, did not tend to explain or qualify any act of his, and were consequently not admissible as a part of the res gestae. As naked admissions, qualifying or explaining no cotemporaneous official act of his, they were no more entitled to be received in evidence than they would have been if they had been made at any other time, or on any other occasion. The liability of the town to keep this road in repair as an existing public highway rests upon the acts, and not upon the admissions, of its selectmen or other officers. Upon the point of the care and diligence which the plaintiff was bound to exercise, the court, instructed the jury that if the plaintiff did not exercise ordinary care and prudence in attempting to cross the bridge, and this contributed to the injury, he could not recover, but that he had a right to presume the bridge safe for a proper load, and was not bound to examine it before attempting to cross it, unless he had been informed that it was unsafe, or had reason to distrust or suspect its safety. The defendant requested the court to charge the jury on this point, that the plaintiff’s conduct in driving upon the bridge under the — 592 — circumstances must have been that of a prudent and careful man to entitle him to recover, and that if he had reasonable ground to apprehend that the bridge was unsafe for such a team and load, the driving upon the bridge with such a team and load was such an act of imprudence and want of care as to prevent him from recovering in this action; but the court declined so to instruct the jury any further than as is above stated. The terms “ ordinary care and prudence” are some times liable to misconstruction, though, when rightly understood, they express the degree of care and prudence which the plaintiff was bound to exercise. Although legal error might not, under ordinary circumstances, be predicated upon the use of these terms in defining the requisite degree of care and prudence which it was the duty of the plaintiff to exercise, we think that the rule should have been expressed in terms more definite and less liable to be misunderstood, and that the court ought to have instructed the jury in the terms of the defendant’s request on this point, and that the omission or refusal so to instruct the jury was error. The duty of the court in explaining the requisite degree of care and prudence which a party should exercise in a given case is so well stated by Redeield, C. J., in Briggs v. Taylor, 28 Vt. 183, that we may content ourselves with a reference to that decision as fully justifying the terms of the defendant’s request on this point. We do not regard the defendant’s objection to the allowance of the bills of the plaintiff’s physicians as being well taken. In the case of a severe bodily injury, we regard the services of a physician as being so essentially necessary, that they may be recovered as a part of the general damages directly resulting from the injury; and, we think, that the plaintiff’s expenses on account of the employment of physicians are stated in his declaration with sufficient particularity even to be recovered as special damages. Sedgwick on the Measure of Damages, p. 574 (Marg.) ef seg. Hutchinson v. Granger, 13 Vt. 386, 394. Judgment of the county court for the plaintiff reversed, and a hew trial granted.