The opinion of the court was delivered by
Kellogg, J.
This case has been heard in this court upon two distinct bills of exceptions taken by the plaintiffs, in the county court, one of which has reference to the decision of that court over-ruling the motion for a new trial, and the other of which has reference to the charge given by the court to the jury on the trial.
[444]*444The motion for a new trial was denied by the county court for the reason that the testimony introduced and relied upon in support of it, if true, was insufficient in point of law to justify the court in setting aside the verdict; and also for the reason that the court were of the opinion that in the exercise of a sound discretion the motion ought to be denied. The only question arising from the denial of this motion which can be the subject of revision in this court, is the decision that the testimony relied upon in support of the motion was not sufficient in law to justify the court in setting aside the verdict; and, in the consideration of this question, all the facts which the testimony tends to establish must be treated as proved. The facts claimed to be proved by this testimony are substantially these : — This case was tried at the April Term of the county court in 1865, and on a'Saturday, while the trial was in progress, the jury, by leave of the court, were allowed to go to the place in the town of Sheldon where the injury, which is the subject of the action, happened, and make a personal examination of the locality, accompanied by counsel for the respective parties; and that, after this examination was completed, one o’clock, one of the jurors, by invitation, went to the house of Woolford Peckham, a rateable inhabitant of Sheldon, and lodged there on that night, and took supper and breakfast there, and returned to his home in Fairfield on the next morning, — that day being Sunday ; — and that, before breakfast that morning, on the invitation of Peckham, he drank some spirituous liquor which was furnished by Peckham ; and that he paid nothing for the entertainment furnished to him by Peckham, and that this entertainment was gratuitously furnished ; and also that one Barr, another rateable inhabitant of Sheldon, and an inn-keeper there, on the same Saturday, and after the jury had finished their examination of the locality of the accident, invited one Stilphen, another of the jurors, to drink some spirituous liquor, and that Stilphen, on this invitation, drank spirituous liquor which was furnished to him by Burr on that occasion. The county court, in deciding that, in the exercise of a sound discretion, the motion for a new trial ought to be denied, virtually decided that the testimony failed to show that the entertainment furnished to these jurors while at Sheldon had any improper influence upon the verdict, and this finding is not subject to be reviewed in [445]*445this court. The only question which can be considered on the plaintiffs’ exceptions to the decision by which the motion for a new trial was overruled is, whether the furnishing of victuals and drink to these jurors by a rateable inhabitant of Sheldon, without compensation, should be considered as a sufficient reason in law for setting aside the verdict, even though no improper influence was exercised upon the verdict by this means. The statute provides that “ if any party obtaining a verdict in his favor in any court, shall during the term of said court in which such verdict is obtained, give to any one of the jurors in such cause, knowing him to be such, any victuals or drink, or procure the same to be done, by way of treat, either before or after said verdict, on due proof thereof beingf made, it shall be sufficient reason to set aside the verdict and award a new trial in such case.” (G. S,, p. 882, § 16.) If the furnishing of victuals and drink to these jurors without compensation is to be considered as a giving by way of treat, the decision of the county court in respect to the legal sufficiency of the testimony was erroneous. The decision of the question depends wholly upon the construction which should be given to the statute. We think that the giving of victuals and drink “by way of treat,”*referred to in the statute, is something distinct from the ordinary exercise of friendly hospitality, and that the statute was not intended to forbid such acts of hospitality in the intercourse of 'friends* as would be usual and ordinary, but was designed to apply to something of a different character, — to an entertainment or treat which suggests the idea of convivial enjoyments and fellowship, rather than the customary hospitalities of daily life. We do not consider the mere furnishing of food or drink, when confined within the limits of ordinary hospitality, as fairly coming within the mischief which the statute was designed to guard against; and when it is found, as it w^s virtually found by the county court in this case, that the entertainment furnished to the jurors, was not furnished for any improper purpose, and that it had no improper influence upon the verdict, we think that it ought not to be regarded as falling within the sense or application of the statute. We think also that a rateable inhabitant of the town is not such a “party” as is contemplated by the statute. The town is a municipal corporation, and appears and defends suits by an agent, and no single inhabitant has any con[446]*446trol over the defence to he made in the suit, nor any right to interfere with the proceedings. The town is the only party defendant in the suit, and the interest of its inhabitants in the result is indirect as well as contingent. It is a sufficient satisfaction of 'the terms and spirit of the statute, as we think, to hold that the giving of victuals or drink to a juror must be at the expense of the town, or must be the act of some one of its authorized agents in order to constitute it a giving by a party to the suit. ■ We think that the county court correctly decided that the testimony was not legally sufficient to set aside the verdict and order a new trial; and the plaintiff’s exceptions to this decision are accordingly overruled.
We come nW to the plaintiffs’ exceptions to the charge of the court to the jury on the trial. The injury for which the action was brought was an injury to Mrs. Carlisle, the feme plaintiff, who was riding in a wagon with her husband at the time of the accident. The charge was, that if the husband, on the occasion of the accident, was wanting in ordinary care and skill, or was guilty of negligence or want of ordinary care in driving in the darkness of the night, or in not stopping his horse and getting out of his wagon to examine the place, and such negligence or want of ordinary care contributed in any, even the slightest, degree, to the injury, although the road was insufficient and out of repair for want of a railing or guard on its lower margin, the plaintiffs could not recover ; and that if the jury should find that Mrs. Carlisle was justified under the circumstances in jumping from the wagon as she did, and that, if she had remained in the wagon, the injury would not have happened, still, if her husband was guilty of negligence and a want of ordinary care as above stated, then the plaintiffs could not recover, although the action would survive to het\ It is not disputed that the evidence on the part of the defendants, had a tendency to show that the husband was driving an unsafe horse, and it was admitted that the night was so dark that he could not see the road, and the defendants’ evidence had a tendency to impute to him a want of ordinary care and prudence in driving in that locality at that time.
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The opinion of the court was delivered by
Kellogg, J.
This case has been heard in this court upon two distinct bills of exceptions taken by the plaintiffs, in the county court, one of which has reference to the decision of that court over-ruling the motion for a new trial, and the other of which has reference to the charge given by the court to the jury on the trial.
[444]*444The motion for a new trial was denied by the county court for the reason that the testimony introduced and relied upon in support of it, if true, was insufficient in point of law to justify the court in setting aside the verdict; and also for the reason that the court were of the opinion that in the exercise of a sound discretion the motion ought to be denied. The only question arising from the denial of this motion which can be the subject of revision in this court, is the decision that the testimony relied upon in support of the motion was not sufficient in law to justify the court in setting aside the verdict; and, in the consideration of this question, all the facts which the testimony tends to establish must be treated as proved. The facts claimed to be proved by this testimony are substantially these : — This case was tried at the April Term of the county court in 1865, and on a'Saturday, while the trial was in progress, the jury, by leave of the court, were allowed to go to the place in the town of Sheldon where the injury, which is the subject of the action, happened, and make a personal examination of the locality, accompanied by counsel for the respective parties; and that, after this examination was completed, one o’clock, one of the jurors, by invitation, went to the house of Woolford Peckham, a rateable inhabitant of Sheldon, and lodged there on that night, and took supper and breakfast there, and returned to his home in Fairfield on the next morning, — that day being Sunday ; — and that, before breakfast that morning, on the invitation of Peckham, he drank some spirituous liquor which was furnished by Peckham ; and that he paid nothing for the entertainment furnished to him by Peckham, and that this entertainment was gratuitously furnished ; and also that one Barr, another rateable inhabitant of Sheldon, and an inn-keeper there, on the same Saturday, and after the jury had finished their examination of the locality of the accident, invited one Stilphen, another of the jurors, to drink some spirituous liquor, and that Stilphen, on this invitation, drank spirituous liquor which was furnished to him by Burr on that occasion. The county court, in deciding that, in the exercise of a sound discretion, the motion for a new trial ought to be denied, virtually decided that the testimony failed to show that the entertainment furnished to these jurors while at Sheldon had any improper influence upon the verdict, and this finding is not subject to be reviewed in [445]*445this court. The only question which can be considered on the plaintiffs’ exceptions to the decision by which the motion for a new trial was overruled is, whether the furnishing of victuals and drink to these jurors by a rateable inhabitant of Sheldon, without compensation, should be considered as a sufficient reason in law for setting aside the verdict, even though no improper influence was exercised upon the verdict by this means. The statute provides that “ if any party obtaining a verdict in his favor in any court, shall during the term of said court in which such verdict is obtained, give to any one of the jurors in such cause, knowing him to be such, any victuals or drink, or procure the same to be done, by way of treat, either before or after said verdict, on due proof thereof beingf made, it shall be sufficient reason to set aside the verdict and award a new trial in such case.” (G. S,, p. 882, § 16.) If the furnishing of victuals and drink to these jurors without compensation is to be considered as a giving by way of treat, the decision of the county court in respect to the legal sufficiency of the testimony was erroneous. The decision of the question depends wholly upon the construction which should be given to the statute. We think that the giving of victuals and drink “by way of treat,”*referred to in the statute, is something distinct from the ordinary exercise of friendly hospitality, and that the statute was not intended to forbid such acts of hospitality in the intercourse of 'friends* as would be usual and ordinary, but was designed to apply to something of a different character, — to an entertainment or treat which suggests the idea of convivial enjoyments and fellowship, rather than the customary hospitalities of daily life. We do not consider the mere furnishing of food or drink, when confined within the limits of ordinary hospitality, as fairly coming within the mischief which the statute was designed to guard against; and when it is found, as it w^s virtually found by the county court in this case, that the entertainment furnished to the jurors, was not furnished for any improper purpose, and that it had no improper influence upon the verdict, we think that it ought not to be regarded as falling within the sense or application of the statute. We think also that a rateable inhabitant of the town is not such a “party” as is contemplated by the statute. The town is a municipal corporation, and appears and defends suits by an agent, and no single inhabitant has any con[446]*446trol over the defence to he made in the suit, nor any right to interfere with the proceedings. The town is the only party defendant in the suit, and the interest of its inhabitants in the result is indirect as well as contingent. It is a sufficient satisfaction of 'the terms and spirit of the statute, as we think, to hold that the giving of victuals or drink to a juror must be at the expense of the town, or must be the act of some one of its authorized agents in order to constitute it a giving by a party to the suit. ■ We think that the county court correctly decided that the testimony was not legally sufficient to set aside the verdict and order a new trial; and the plaintiff’s exceptions to this decision are accordingly overruled.
We come nW to the plaintiffs’ exceptions to the charge of the court to the jury on the trial. The injury for which the action was brought was an injury to Mrs. Carlisle, the feme plaintiff, who was riding in a wagon with her husband at the time of the accident. The charge was, that if the husband, on the occasion of the accident, was wanting in ordinary care and skill, or was guilty of negligence or want of ordinary care in driving in the darkness of the night, or in not stopping his horse and getting out of his wagon to examine the place, and such negligence or want of ordinary care contributed in any, even the slightest, degree, to the injury, although the road was insufficient and out of repair for want of a railing or guard on its lower margin, the plaintiffs could not recover ; and that if the jury should find that Mrs. Carlisle was justified under the circumstances in jumping from the wagon as she did, and that, if she had remained in the wagon, the injury would not have happened, still, if her husband was guilty of negligence and a want of ordinary care as above stated, then the plaintiffs could not recover, although the action would survive to het\ It is not disputed that the evidence on the part of the defendants, had a tendency to show that the husband was driving an unsafe horse, and it was admitted that the night was so dark that he could not see the road, and the defendants’ evidence had a tendency to impute to him a want of ordinary care and prudence in driving in that locality at that time. The question on this part of the case is whether a lack of ordinary care and prudence on the part of the husbaud is in law, under the circumstances of the case, a bar to a recovery for an injury to the wife when she herself [447]*447Was in the exercise of that degree of care and was in no fault whatever. The wife was riding in a wagon which was drawn by a horse driven by her husband, who was also riding in the same wagon. She was a passenger over the highway, and she stands in no different position in respect to her rights as against the town from that which she would occupy if the driver of the vehicle in which she was carried had been, instead of her husband, one employed for that purpose. The negligence or want of ordinary care of her servant would have the same effect, and be attended with the same legal consequences, which would follow from her own negligence or want of care. If she had been a passenger in a stage coach on this occa-| sion, and had received the same injury, under precisely the same cir-\ cumstances, although she might have had a cause of action against 1 the proprietors for the negligence or want of ordinary care of the l driver, we regard it as clear that no action could have been maintained against the town, because the proprietors and their driver would, in respect to the town, be treated as being her agents and servants, and their negligence or want of ordinary .care would be attended with the same consequences which would result from her own negligence and want of such care. The passenger would, in respect to the town, stand upon the same footing that he would if he 'had himself been the driver. There is nothing in the marital relation which would change the situation of the wife in respect to her husband’s negligence under such circumstances, for the same consequences would have followed if the relation, instead of being that of husband and wife, had been that of parent and child, father and daughter, or master and servant, or if she had been an entire stranger, and had been carried by her husband as a passenger gratuitously and without any expectation of a reward. She was under the care of her husband, who had the custody of her person and was responsible for her safety; and any want of ordinary care on his part is attributable to her in the same degree as if she were wholly acting for herself. Holly v. Boston Gas Light Co., 8 Gray, 123, 131, 132.
If, in respect to the town, Mrs. Carlisle should he treated as responsible for the lack of ordinary prudence and care on the part of her husband on the occasion of her injury, the charge of the court [448]*448to the jury was in all respects correct and i» accordance with the settled doctrine in respect to the liability of towns for injuries occasioned by the insufficiency of highways. Cassedy v. Stockbridge, 21 Vt. 391; Kelsey v. Glover, 15 Vt. 708.
Judgment of the county court for the defendant affirmed.