Cook v. Town of Barton

TYLER, J. The notice alleged that the plaintiff was injured by reason of the insufficiency of a culvert or sluice in a highway in defendant town; that the insufficiency was that the opening through the culvert was too small to permit all the water to flow through; that consequently a part of it was thrown across the highway adjacent to the culvert and on each side of it and formed holes which caused the plaintiff to be thrown from her carriage and injured. It in effect alleged that the holes were within the approaches to the culvert. It was not necessary that the notice should "call the holes defects or insufficiencies. It pointed them out, described them, and alleged that they caused the accident. It described the culvert in respect to the opening through it, and in respect to the holes which the jury have found, under the instruction of the court, were within the approaches to it. The notice is, in compliance with the.statute which requires that notices shall point out “in what respect the bridge, culvert or sluice is insufficient and out of repair.” The plaintiff was permitted to introduce evidence tending to show that this condition of the culvert and its approaches had existed continuously from the spring of 1887 until the time of the plaintiff’s injury, but had slowly grown worse. As the evidence related to this particular place and to these alleged defects in the highway, it was proper to show the condition at other times by way of comparison and descrip [69] tion. Whitney v. Londonderry, 54 Vt. 41. Evidence was admissible to show how long it had been in substantially the same condition it was in at the time of the accident, and what changes it had gradually undergone, as it might aid the jury in determining its exact condition at the time in question. Coates v. Canaan, 51 Vt. 131. The notice states that there were two holes on the northerly side and one on the southerly side of the culvert, while the plaintiff’s evidence tended to show that there were two holes on each side. Some of the plaintiff’s evidence tended to show that there was .a depression on each side of the culvert, next to the poles which covered it, extending clear across the traveled track of the highway, but deepest in the wheel tracks. There seems to be no real conflict or variance between the notice and the evidence. To some witnesses it evidently seemed that there was but one depression or hole on each side, extending across the highway, while others might reasonably have said there were two, as the depression was lowest in the wheel tracks. Judgment affirmed.