Ranney v. Town of Sheffield

49 Vt. 191

Opinion

The opinion of the court was delivered by

Wheeler, J.

Thccases heretofore docided'upon this statute, all seem to be reconcilable with each other, and with the decision of the County Court in this one. Law v. Fairfield, 46 Vt. 425, and Babcock & Wife v. Guilford, were both cases where, as they were presented, the notices merely pointed out long lines of road without specifying any places in the lines as the places of injury. The notices in those cases w'ere insufficient because they did not point out any place as the place of the injuries - within the meaning of the statute. In Reed v. Calais, 48 Vt. 7, and Purrington v. Warren, Washington County, August Term, 1876,

Footnotes

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* the notices were not good because the places of the injuries that the plaintiffs claimed on trial to recover for, were not the places specified in the notices. In the former case, the place was named in the notice as being near the residence of Franklin Rideout; but on the trial, the place shown by the evidence was not near his residence, but was near several other prominent objects. In the latter case, the place was specified in the notice as being near the widow Ira Grandey’s dwelling-house, easterly on the road from said widow Grandey’s house. The injury proved on trial was, not on that road, but on another road near by. In Willey v. Berlin, Washington County, August Term, 1874, the notice specified the road, and then the place of injury on-the road, as being below Albert Warren’s in the town of Berlin. The proof on the trial showed the place of injury to be on that road below Albert Warren’s in Berlin, as specified in the notice, so there was no variance between the notice and the proof; and it also showed that there was considerable space of road below Warren’s in Berlin that would be included in the place named in the notice, and that there were several other objects as prominent as Warren’s, nearer than his place to the point of injury, so that the plaintiff could have been more specific than he was. Still, the space of road covered by the notice was not so great, nor was the fact that the' plaintiff could have been more specific so controlling, that the County Court erred in law, in holding the notice sufficient. In this case the notice specifies the road and the place of injury on it as being at a certain bridge between William Mitchell’s and Hugh Mitchell’s. The proof on trial shows the injury to have been on that road at a bridge between William Mitchell’s and Hugh Mitchell’s. So there is no variance between the notice and the proof. But when the proof is all in, it shows that there were two bridges on that road between William Mitchell’s and Hugh Mitchell’s, either of which would answer the specification in the notice ; and that the plaintiff could have been more definite in his notice specifying which bridge. Still, the County Court held the notice sufficient. There is no claim made that there was any error in not submitting the question to the jury, with instructions; so the only question submitted to be decided here is, whether there was error in law in the finding and holding by the County Court upon the proof that the notice was sufficient. If the space covered by the notice should be said to be the two bridges and the whole twenty rods between them, it would not be a long line of road, merely, as those were in Law v. Fairfield and Babcock & Wife v. Guilford, and would be considerably less in extent and more definite than that in Willey v. Berlin. But the notice cannot be justly said to cover the whole twenty rods and the bridges, for it excludes all but the bridges. This space covering the two bridges cannot be hold to be so great or so indefinite as to make the decision of the County Court upon it erroneous in law, without overruling the decision in Willey v. Berlin; and it may be held definite enough to warrant the decision of the County Court, without conflicting with the decision in any other case. These considerations cover the greater part of the effect of the fact that the plaintiff had information that would enable him to specify 'the place more definitely than he did. There could hardly be a specification so definite that it could not be made’more so in some respects. The party should go in definiteness, in this respect, as far as he can to a reasonable degree. This is all that is required by the decision in Reed v. Calais. What is a reasonable degree, must rest somewhat with the tribunal that decides questions of fact; and to that extent, the decisions are not revisable on error. So far as the question is one of fact, the County Court has held the notice sufficient. That the notice is not insufficient, as matter of law, merely because the plaintiff could have been more definite, appears also from the decision in Willey v. Berlin. From these considerations it appears that there was no error in the decision of any question of law by the County Court in any respect complained of.

Judgment affirmed.

Ante, 19.