Eames v. Town of Brattleboro

The opinion of the court was delivered by Yeazey, J. I. No question is made but that the person injured was “ bereft of her reason.” She died within half an hour of the injury. The defendant claims that notice was required not [475] withstanding the proviso to the notice act, which is “That nothing in this section shall be construed to apply to any case where the person injured shall in consequence thereof be bereft of his or her reason.” Acts of 1874, No. 51. We think there is no room for doubt that no notice was required in this case. The language is plain, and the effect of it unmistakable. The “ person injured,” as used in the proviso, refers to the person injured in the accident, not to the person injured pecuniarily, as a result of the accident. II. The person killed was a married woman, and the recovery is sought for the benefit of the two minor daughters, the next of kin, of the deceased. The cause of action survived,.if at all, under the provisions of sections 2138-9, R. L. It is claimed that those sections apply only to cases where an action would have been maintainable at common law had the injured person survived, not to a cause where the remedy is created by statute, as in case of injury by reason of a defective highway. The language of judges in reported cases may import this idea ; but they were cases where there would have been a common-law remedy had the person survived ; therefore, in discussing the question as to whether the survivorship statute applied to the case in hand, the language used was pertinent. They are mostly cases of injury on railroads. Our statute, section 2138, is as follows: “ When the death of a person is caused by the wrongful act, neglect, or default of a person, either natural or artificial, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof the person or corporation liable to such action if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.” . . . Had this woman survived her injuries, it is not claimed but that she could have maintained an action and recovered damages if her case was made out in other respects. ' Yet this is the only test for the determination of the question of survivorship of the action after her death. There is nothing in this section pointing in the least to the idea that it is to be restricted to causes of action existing at common law only. But it is further claimed that the statute in force, (now re [476] pealed,) providing for a remedy against towns, restricted the damages recoverable to such as “ shall happen to any person, his team, carriage, or other property,” and that no such damages are sought or could be recovered in this case, the damages here sought being those provided in section 2139, R. L., “ Such damages as are just, with reference to the pecuniary injury resulting from such death to the wife and next of kin.” Precisely the same objection could be made if the injured person’s remedy, had she survived, been a common-law instead of a statute remedy. The damages would have been for her personal injury only, in a suit in her own behalf. Section 2139 changes the kind of damages recoverable in the case of a common-law remedy as much as it changes the damages specified in the highway statute. The effect of the highway statute was to make towns liable for negligence as to highways and in respect to travellers the same as other corporations and individuals were liable for negligence at the common law. Towns having been brought into this line, we think they became subject to the provisions of the survivorship statutes the same as though they had been in it by force of the common law. The reasons are apparent why the Legislature should have provided as to the nature or character of the damages, in case the injured person died, it having provided that the liability should continue. The purpose of the act now incorporated into sections 2138-9 of the Revised Laws, and which was copied from 9 and 10 Viet., ch. 93, was to prevent actions or causes of action for personal injuries dying with the person ; but he being beyond the reach of benefit it was further provided that the wife and next of kin should receive it, and logically from this that the damages should be the pecuniary loss which the persons, made entitled by the statute, suffered in the death of the injured party. We think the statutes involved should receive the construction indicated. Although the question was not raised in Hill, Admr. v. New Haven, 37 Vt. 501, we still think the same view must have been taken, as it is hardly conceivable that the question could have been overlooked by the exceptionally able court and counsel in that case. We are informed the same construction has been given in other cases for injury on highways, not reported. [477] III. Exception was taken to the charge to the jury on the question of damages. The objection is now confined to the words in brackets in the exceptions. The court having correctly stated to the jury the rules as to damages, and fairly submitted the whole question upon the evidence and under the rules as stated, we think the clause now objected to was not inappropriate, and affords no substantial ground of exception. IY. Exception was also taken to the rejection of the testimony offered tending' to impeach Scott Dunklee, the husband of the plaintiff’s intestate, and who was riding with her at the time of the accident. If the exceptions expressly stated that Dunklee testified in his direct examination, as the plaintiff’s witness, how th’e accident happened, and described the alleged defects causing it, it is plain that some of the rejected evidence would have been admissible as affecting his credibility as a witness. It would have been the ordinary case of a witness having told a different story out of court from what he had testified to in court, on a material point. But they do not so state. It appears that Dunklee denied when asked, while under cross-examination, that he had said certain things about the accident and the cause of it, to certain persons named, which the defendant offered to show by those persons he had said to them ; but it does not appear except by inference that he testified differently on the same points from what it was offered to show he had said out of court; or that he testified at all on those points. The inference is quite strong in support of the defendant’s theory, but counsel in their briefs exactly disagree as to what the witness’s direct examination was, and as the exceptions stand, and with the counter claim of counsel as to the fact, we think the inference is not strong enough to overcome the rule requiring the excepting party to show error. The palpableness of the error, if it was as the defendant claims, creates an inference the other way. The above rule relieves the necessity of a resort to guessing between inferences in giving construction to a bill of exceptions. The above are the only exceptions now insisted upon. Judgment affirmed.