Ozier v. Town of Hinesburgh

The opinion of the court was delivered by Barrett, J. In view of the criticisms of the learned counsel on each other as to the getting up of the bill of exceptions as it is now presented, we take occasion to remark that this court derives its authentic knowledge of the case from the bill of exceptions alone. Upon the case as it is certified by the presiding judge of the county court, it appears that he failed in the charge to the jury to present an idea material to the rights of the defendant, and founded in the solid principles and reasons of the law of this class of cases. When a sudden and unforeseen defect occurs in a highway, without fault on the part of the town, such town is not chargeable for the damage resulting from such defect, unless it has been in default in respect to getting seasonable knowledge of the defect; or unless, having such knowledge, it was reasonably [230] practicable to have, repaired the defect, or put up a warning or barrier to avoid it, before the happening of the accident. Upon the evidence, this view, we think, ought in some proper way to have been presented to the jury. We can surmise that it was so presented in fact; but the bill of exceptions indicates that it was not, and for this the judgment is to be reversed. We think the defendant was entitled to have the first printed request answered affirmatively in the charge. While we appro-bate what the judge said on the subject of the duty of the town in respect to the west track, upon the evidence and the claim of the plaintiffs, we do not find ourselves fully concurring, whether in the charge as given in the exceptions, the judge accorded to the defendant an adequate answer to that request. So we leave that matter without further remark. Judgment reversed, and cause remanded.