Barton v. Town of Montpelier

*653 The opinion of the court was delivered by Barrett, J.

The referees specifically find that the road, at the point of the accident, was insufficient and out of repair, by reason of the narrowness and the manner in which the ridges of sno v had been cut down and thrown out, for keeping the track open during the winter. Into this narrow pass the snow had drifted during the day on which the accident happened. The sleigh was upset by one runner rising upon the drift thus formed. The immediate cause of the sleigh tipping over was the drift. The referees do not find that the drift made the road out of repair, nor do they find that the plaintiff was in fault in going on to the drift. But they do find that if the cut through the ridges had been sufficiently wide for the reasonable safety and accommodation of the ordinary travel on said highway, this accident would not have happened, notwithstanding said drifting on that day. Laying aside metaphysical and somewhat inappreciable distinctions, it would strike most minds that the culpable fault of the party having the charge of, and responsibility for, the condition of the road, was the procuring cause of the accident. The practii al statement is, if the road had been of a reasonably safe width, the accident would not have happened. It was not of reasonably safe width, and it did happen. The appreciable, logical, as well as sensible result is, that the efficient cause of the accident was the defect from lack of reasonable and sufficient width. We think we must hold that the case shows the injury to have happened through such insufficiency and want of repair, as will render liable the party that is responsible to the public for the condition of the road at this point.

A question is made in the argument as to the sufficiency of the notice, under the requirement of the statute. It has not been furni-l.ed to the court, nor does the case, as made up, present the point.

We understand from what was said about it, that the notice was given by the husband, without his wife joining in giving it.

We can not regard it our duty to require great nicety in respect to the manner in which the purposes of the statute shall be carried out. The provision is for the benefit of the town, to enable it seasonably to investigate claims for injury, before means of proof shall have disappeared, through lapse of time and failure of life and memory.

*654 Whenever a town is substantially notified of the happening of an accident resulting in injury, it would seem to be put in the way of realizing all the benefit that the statute was designed to confer.

The claim in this case, to be sure, rests on the personal injury that the wife sustained, but that claim must be enforced, if at all, by suit, by the procurement of the husband, upon his responsibility and for his benefit. It is his claim, though, to answer the requirements of a purely technical rule, his wife’s name must be inserted in the writ. The wife can not assert the claim in her own name and right. And it would seem to admit of more doubt whether a notice given by her, or in her name alone, would be sufficient, than whether the notice given in the name of the husband alone is sufficient.

As to the sufficiency of the contents of the notice, we can not decide without having it before us. Any question that might be raised on that subject, seems not to have been regarded as important, inasmuch as no point is made respecting the subject in the defendant’s brief.

The more important question is, whether the town is responsible for the damage that has accrued. In other words, was the town bound to keep the road in repair ?

The road, at the place of the injury, has long been an open and public highway, but was for many years a part of the Winooski turnpike. If it is now a town road, instead of being the road of said Turnpike Co., it is so in virtue of the town’s having assumed it by adoption. As to the power of the town to do so, there can, at this time, be no question. The case shows that under the act of 1851, the town took the requisite steps, and, so far as depended on its action, did assume and adopt it as a town road. Since 1852, it has been included in the highway tax bills, and taxes have been regularly expended in its repair. In fact, it has been treated by the town the same as any other town road.

In all respects, the town have proclaimed by its votes and its acts, that the road is in law and in fact, in its charge and control, to every intent and purpose. And during all the time no one has interposed any protest or counter claim.

If, therefore, the incident liability of the town is to be avoided, it must be because the town has been thwarted in the accomplish *655 ment of its most obvious purpose of making the road its own, by the undeveloped non-concurrence of the Turnpike Company. It is indeed claimed, in behalf of the defendant, that the attempted adoption by the town could not be effectual to subject it to responsibility for the condition of the road, unless the Turnpike Company have responded to the efforts at adoption made by the town, by a corresponding surrender. •

It is probably true that the town could not divest the Turnpike Company of their corporate rights and correlative liability, without the assent of that company.

But we think that, as to the town, the Turnpike Company should be regarded as having surrendered -or dedicated the road to the town. The removal of the gates, the ceasing of all care and control of the road, the permitting of the whole franchise and stock to be sold on execution, the remaining silent while the town has been treating the road in all respects as its own, and all this following upon the public vote of the town above referred to, must be treated as acts from which a surrender or dedication should be presumed, until the contrary is affirmatively shown.

We, therefore, hold that the town is liable for the damages sustained by the plaintiffs in this suit.

The judgment of the county court is affirmed.