Solmon S. Yuran vs. Inhabitants of Randolph, 6 Vt. 369

The opinion of the court was pronounced by Mattooxs, J. — ‘The first question raised by the exceptions in this case is, whether Levi Bruce, the highway surveyor of the district in which the bridge is situated, the insufficiency of which is alleged to have caused the injury complained of, was a competent witness for the town.

As the statute makes the surveyors of the several districts liable to pay all damages which shall accrue to the town by their fault or neglect, and as the surveyor has power in the case of repairing to warn out the people of his district immediately, whether they are in arrear or not, (act of 1880, sec. 17, 18) the surveyor was evidently interested in the cause; for if the plaintiff recovered of the town in consequence of the bridge being out of repair, it would be conclusive in an action against the surveyor, at least as to the amount of damages; and the most favorable position as to the witness', would be like that of a servant in .an action against the master for negligence of him.

The servant cannot in such case be a witness for his master without a release. A re-release was offered, signed by one of the selectmen of the town, accompanied with an offer to prove that • the other selectmen assented thereto. This was properly rejected by the court; for jt has lately been decided by this court, in a case not yet reported and published, that the selectmen have not power to execute such a release, but it must be done by a vote of the inhabitants of the town. The next inquiry is as to the charge of the court. In the case of Noyes vs. Morristown, 1 Vt.

Rep. 353, it was decided that the special damage, for which the statute gives this action against a town is that which is caused by “ deficiency or want of repair in the bridge,” and that the person injured must show the injury to have arisen from that cause; and as the burden of proof was upon the plaintiff, the charge which directs the jury that if they found certain facts proved, the legal presumption was that the horse was killed through the insufficiency of of the bridge, unless the defendants had proved that the horse was killed by other means, was evidently incorrect.

It was shifting the onus probandi from the plaintiff to the defendants. The facts mentioned should have been left to the jury with the other evidence in the case," for them to have found whether the injury to the horse was occasioned by the insufficiency and want of repairs in the bridge; and therefore the judgment of the county court is reversed.