Spear v. Town of Lowell

The opinion of the court was delivered by Royce, J. No exception was taken to the charge of the court, and under the charge, the jury must have found that down to the time of the commencement of the thaw on the 27th of March, the town had discharged its entire duty in reference to this highway. The exceptions taken were to the rulings of the court upon questions relating to the duty of the town after the thaw had commenced. No question seems to have been made but that the highway in question was unsafe for public travel at the time of the happening of the accident to the plaintiff; and the liability of the town for the consequences of the accident, must depend upon whether the town was negligent in permitting the highway to remain in that unsafe condition. The duty of highway surveyors, as defined in ch. 25 of the Gen. Sts., has frequently been the subject of judicial examination ; and in Clark v. Corinth, 41 Vt. 449, the court held, that whether the surveyor was in fault or not, depended upon the question whether, by diligently using the means at his command or within his reach, he could have put a force immediately upon the road which was competent to make the necessary repairs after the injury to the road and before the accident happened ; so that the fact that the surveyor does not immediately proceed in the attempt to make a highway passable and safe for travel over it, is not conclusive upon the question of his negligence. The question is, whether such attempt could be successful if made. There may be cases, and from the evidence as detailed this was probably one, where the surveyor would not be required to make an immediate attempt to make the highway safe for travel. The statute must receive a reasonable construction; and where it is evident that any such [701] attempt would be fruitless, it would be unreasonable to require it to be made ; and as bearing upon the question of the duty of the surveyor, we think it was competent to show the condition of the highway in question, and the nature and extent • of the work required to be done upon it; and as explanatory of the means at his command, or within his reach, it was permissible to show the number of miles of road, and their condition, which the town was required to maintain, and the population of the town. We perceive no error in the ruling of the court upon the question of the obligation of the officers or inhabitants of the town to have turned out and repaired this road on the Sabbath. There was no such conflict in the evidence as entitled the party to the judgment of the jury : and it was competent for the court, as the question was presented, to rule upon it as a question of law ; and it may well be questioned whether, under our statute enforcing the observance of the Sabbath, towns would ever be justified in bestowing labor upon their highways on that day, to merely facilitate travel over them. It would seem that such labor only became a necessity when necessary to avoid impending danger to life or property. For reasons already given, the plaintiff was not entitled to the charge asked for in his second request. Neither can we notice the objection made in argument, that the court neglected to charge upon the subject-matter of this request; because, if there was such neglect, no exception appears to have been taken to it; and if we were to make any presumption, it would be that the court gave such instructions to the jury upon the subject as the case required. Judgment affirmed.