Cheney v. Town of Ryegate

The opinion of the court was delivered by Redfield, J. I. The plaintiffs’ case tended to show that his carriage was run into and the wife injured in a narrow ravine, or cut, in the highway by a runaway team coming from the rear; and that the driver of the latter team was thrown from his sled in consequence of a bad place in the road, about fifty rods back of the place of collision, and the horses left running at large without a driver, when if the driver had kept the control of the reins, he would have avoided the collision and injury; and therefore the defect in the- road at both points contributed to the injury. The defendant offered to prove, in reply, that the horses in the runaway team had the vicious habit of running away, and this testimony was excluded. We think there was no error in this. The towns are required to so construct their highways as to guard against accidents likely to occur. In Kelsey v. Glover, 15 Vt. 708, Kelsey’s horse was killed by a runaway team, forced into the highway and against Kelsey’s horse by a tree-top on the margin of the road. That horse had the historic vice of running away, “ without any occasion.” Whether the runaway horses are instigated by inherent vice, or adequate occasion, is not material; it is enough that the danger of injury to the plaintiffs was enhanced by this accident, or incident, that occurred in consequence of this bad place in the road. Whether the owner or driver of that team could have recovered damages for his injury, of this defendant, is not involved in this case. [503] II. The memoranda of measurements, made at the time, in connection with the testimony of witnesses who made them or knew of their accuracy, are always admissible; and if the court deemed it important or proper to allow plaintiffs’ witnesses recalled, and the memoranda produced to rebut the accuracy of the defendant’s measurements, it was all within the discretion of the court. It was merely confirmatory of plaintiffs’ evidence already in the case. Lapham v. Kelley, 35 Vt. 195; Cross v. Bartholomew, 4 Vt. 207. We think the testimony of Wallace and King was, under the circumstances, admissible. We find no error, and the judgment is affirmed.