Giddings v. Town of Ira

The opinion of the court was delivered by Royce, Ch. J. The notice to the defendant town was objected to for the reason that it was not seasonably given. If fractions of a day are to be disregarded, it is conceded that the notice was seasonably given. The general rule is that in law there are no fractions of a day. The exceptions made to the rule have [350] generality been in cases where the power or right has been involved, as in Courser v. Powers, 34 Vt. 517 ; or where a question has been made as to the priority of acts of the same date. That this comes within the general rule is very clearly shown by the opinion of the court in Robinson v. The Exrs. of Robinson, 32 Vt. 738. The question there was, as to the validity of an appeal from the Probate Court. The statute required that the application for an appeal should be in writing, and filed in the register’s office within twenty days after the commissioners returned their report. And it was held that the appliant had twenty days within which to file his application, not including the day upon which the return was made. The’notice required by the act of 1874 was to be given within twenty days of the occurrence of the injury or damage. And if fractional parts of a day are to be regarded, it is not obvious why they were not considered in that case. The slight difference in the phraseology of the two statutes does not warrant a different rule of construction for the one, from the one adopted in the construction of the other. It is said by Wilde, J., in Bigelow v. Wilson, 1 Pick. 485, that a day is considered as an indivisible point of time ; that there can be no distinction between a computation from an act done and a computation from the day in which the act was done — so that the notice we hold was seasonably given. It appeared that the road upon which the accident happened was a mountain road, upon which there was not a large amount of travel, and it was claimed that the defect therein which occasioned the accident to the plaintiff, was a sudden and unforeseen defect, for. which the town was not liable. To show that the defect was not of that character, the plaintiff was permitted to show how the defect was produced ; and that it had existed at other winters prior to his injury. The evidence was admissible to rebut the claim thus made by the defendant; and as tending to show negligence on the part of the defendant in not having made the needed repairs, it was permissible for the plaintiff to show how the repairs could have been made, and the expense of making them. [351] Evidence that was introduced by the plaintiff against the objection of the defendant, tending to show the condition of the road from the time of the accident to the time of the trial was put in, and used for the purpose of showing what its condition was at the time of the accident; and it was admissible for that purpose. It would aid the jury in determining its condition at the time of injury. Coates v. Canaan, 51 Vt. 131. Exception was taken to the refusal of the court to charge as requested. The court charged fully upon the subject-matters involved in the requests, and the charge is referred to. We have examined the charge, and find that as far as the defendant was entitled to a compliance with his requests, they were complied with. The judge took great care in defining the legal rights and liabilities of the parties ; and in view of what appears as the history of the case, his presentation of it to the jury was eminently just and proper. The judgment is affirmed.