Green v. Town of Danby

12 Vt. 338

• Court: Supreme Court of Vermont
• Decided: February 15, 1840
• Status: Published

Opinion

The opinion of the court was delivered by

Collamer, J.

— The decision of a referee on a question of fact is conclusive. The issue, in this case, was, whether the plaintiff was injured from the insufficiency, of the highway. The referee reports that the highway was insufficient and out of repair. This was a question of fact. Lester v. Pittsford, 6 Vt. R. 245. He also reports, that the plaintiff’s damage accrued from that insufficiency. This, also, was a question of fact.

It may possibly be said, that if a referee report other facts, absolutely inconsistent with his main conclusion, it may be cause for setting aside his report. Does this report contain such ? It appears, from the report, that the main path had been blocked up with drifts of snow from four to six weeks, which had crowded the travel into the ditch. This, so far from showing' the road sufficient, shows the most gross neglect on the part of the town. The report further shows that the evening before the plaintiff’s injury, two wagons, partly loaded, went through those drifts, the wheels cutting through to the ground, and,the next morning, when the plaintiff was passing, the snow was hard frozen. Now this description, so far from showing the road sufficient or safe for the plaintiff to pass with her cutter, showed directly the ■contrary. It appears the plaintiff was going in a covered ■cutter when the sleighing was going off and so was compelled to pick her way on such snow as remained. This was a circumstance tending to show a want of ordinary care, by the plaintiff, in using an improper vehicle. But it is a circumstance no way conclusive. We perceive no error in the report, even in matter of fact, and clearly no error in law, and to •that alone are we confined.

Judgment affirmed.