Rogers v. Town of Swanton

The opinion of the court was delivered by Rowell, J. It was error for the court not to submit to the jury to find what the notice contained as to the place of injury. That was a question of fact for the jury to pass upon under instructions from the court. But the defendant was not injured by this error, as the testimony on this point was substantially concurrent, that offered by defendant not tending to show sufficient [591] to vitiate the notice. Judgment will not be reversed for error that is harmless. It was proper to submit to the jury to find what the notice contained as to injuries received. The testimony on this point was conflicting, and must necessarily be passed upon by the jury. The notice designated the place of injury with sufficient certainty to fulfill the rule laid down in the reported cases on that subject, wherein the discussion is so full that nothing further need here be said. There was no error in allowing the jury to consider the testimony of Fairchild and Rogers as to what the notice contained in regard to injuries. Although this testimony was given while the court was determining what the notice contained in regard to the place of injury, it must be presumed to have been given in the presence and hearing of the jury, and read to them only for the purpose of refreshing their recollection of it. Defendant’s first request was properly refused. It is true that evidence of what the notice contained could not properly be considered by the jury on the question of the condition of the road, nor how the accident happened, and the probability of their making such improper use of it was so remote that the' court was not bound to guard against it in the charge. Sturtevant’s testimony as to what the notice contained did not tend to contradict plaintiff’s claim as to how the accident happened. The court properly left it to the jury to find from the whole evidence on both sides what the notice contained as to injuries. It is objected that it was error to admit evidence of injuries not sufficiently described in the notice. It was proper to admit evidence as to all injuries that the testimony tended to show were described in the notice, as it was for the jury to say what injuries were therein described, and it could not be known in advance what their finding would be on that point. No evidence was admitted as to injuries that the testimony did not tend to show were described in the notice, or that, for aught that appears., might not have resulted from such injuries. There was no error'in this. The testimony of Amos Robinson was properly excluded. The place of injury might have been a^mile and a quarter from Brain [592] ard’s mill and yet the notice be sufficient. Distance must yield to a more definite description by reference to natural objects and the condition of the road, the same as in construing deeds, descriptions by courses and distances yield to more definite descriptions by metes and bounds. There was no error in admitting the testimony of Augusta Barry. It must be presumed, nothing in the exceptions showing the contrary, that it appeared that the road remained in substantially the same condition down to the time of the accident. If it did, the testimony was proper. Minor, the highway surveyor, testified that he was over the road the Saturday and the Sunday before the accident; that he trotted around the gully, and had no difficulty in getting by the stone. He described the gully, said it did not extend so far down as the stone, and that the road was some eleven or twelve feet wide at the stone. On cross-examination, for the purpose of impeaching him, plaintiff was permitted to show that he had said to Rogers and McGettrick that plaintiff was a fool if she did not sue, that the road was bad and no one could deny it. It was competent for plaintiff to show that the witness had made statements out of court inconsistent with his testimony, and this was what was permitted. It does not appear from the exceptions that the court failed to instruct the jury on the question of care and prudence ; but on the contrary, the exceptions show that the court said in the charge that it had so instructed them. Error must affirmatively appear. This court will presume that all necessary instructions were given unless the contrary is shown. The court sufficiently instructed the jury that want of the requisite degree of care on the part of the boy would defeat plaintiff’s recovery, if such want of care contributed to the happening of the accident. Defendant’s third request, and the others of similar character, were properly refused. Many attempts have been made in this class of cases to have the court rule as matter of law that some formulated statement would, if found, amount to such negligence as to defeat a recovery, but such attempts have been unsuccessful. [593] The question of contributory negligence is generally one of fact, to be determined by the jury upon a consideration of all the circumstances of the case. This rule is fully discussed and illustrated in Hill v. New Haven, 37 Vt. 501, 510. The jury were properly instructed as to what injuries the plaintiff could recover for. Judgment affirmed.