R. & R. Richardson, jr. vs. Royalton and Woodstock Turnpike Company, 6 Vt. 496

The opinion of the court was delivered by Mattocks, J. — In-this cause, the admission of certain testimony and the charge of the court are first drawn in question, by the bill of exceptions; and then the sufficiency of the declaration, by the motion in arrest. The plaintiffs offered and were permitted to prove, though objected to, that in 1831 the defendants made the two northern reaches of said bridge new, as the old ones had stood about nine years, and that these new reaches . . were stronger than those which fell with the cattle. Had this evidence any tendency to show the bridge insufficient or out of repair?

One branch of the inquiry, it seems, was the quality of the timber and workmanship ; the soundness or unsoundness of the timber, the length of time it had been erected, and in effect the life and character of the bridge, and the facts objected to, were admitted among the rest. The former practice before the old county courts, who generally gave very narrow charges to the jury as to the nature of the evidence, was, for the counsel to argue by piece-meal, by way of objection upon the evidence as the cause progressed.

The present practice, where the main scope of the testimony is pertinent, is, to permit the story of the transaction to be told, without being very critical by prescribing in advance what shall not be told; and the judge, in summing up to the jury, directs their attention to what points or parts of the testimony are material or important ; and if any thing has fallen from the witnesses that is irrelevant, and may be likely to mislead them, to caution them against it; and this practice is found to be more favorable in arriving at the truth in a case, as a court can judge whether a fact or circumstance is of any weight, after hearing it in connection with the main story, better than by any previous hypothetical conjectures or statements about it; being careful always to keep the incidents in subjection to the principal history.

The law has well classified evidence m general, and the leading proofs in the trial of every issue; but the line between strengthening or confirming circumstances, that have not a direct or certain tendency to prove the issue, and yet are not so remote as to be inadmissible, is not in all cases distinctly marked, and from the ever shifting aspects that new cases present under the same issues, never can be distinctly defined.

Hence Starkie says, (vol. ii. p. 380,) “It seems to be the province of a judge, in the exercise of sound discretion, to discriminate between such facts as are connected with the issue and such as are merely collateral.” It is believed that in modern practice, the evidence that is permitted to go to a jury is more natural; that it is not governed by rules so artificial as formerly. In re-Ution to the matter of the testimony, the form or mode of conducting the facts to the jury, in general, is unchanged.

In 1 Starkie, sec. 7, it is said, that “the great and general rule upon the subject seems to be this — that all facts and circumstances, J . upon which any reasonable presumption or inlerence can be founded as to the truth or falsity of the issue, or disputed fact, are admissible in evidence.” Under this rule, then, did the evidence afford any reasonable inference that the southern reach of the bridge, which broke, was insufficient, because, in 1831, the defendant built the two northern reaches stronger than that reach that did break ?

Does it tend to confirm the plaintiff’s testimony, or weaken or contradict the defendants ? The plaintiff supposes the defendants would not be likely to build a bridge stronger than they believed was necessary, and their making the new part stronger than the old, is evidence that they considered the old, which broke, was not in 1831 when the injury happened, sufficient for the increased wants of the public. This view gains some countenance by what fell from the court in Holley vs.

Winooski Turnpike Company, 1 Aiken, 74, where upon the question whether a railing was necessary, the court say, “ It is also worthy of notice that when this bridge was erected by the defendants and accepted by authority, railings were made upon it, and it is to be presumed that they were not added for ornament, but from a supposed necessity. The testimony was certainly not very pertinent, and so it is to be presumed the court would have instructed the jury, if they had been requested, and at the stage of the trial when it was admitted there might have been no impropriety in rejecting it.

But as the defendants afterwards by their testimony went fully into the history of the building of one part of the bridge, to decide that the proof admitted relating to the other part, which it is scarcely possible to believe affected the verdict, should reverse the judgment, would be hypercritical. As to the charge, the question is, whether in connection with the evidence in the case,, and the request of the defendant’s counsel, the law was correctly stated which should govern the case.

The fiivt position taken by the court was, that the corporation should be liable in the same manner and to the same extent that towns are made liable for damages by the laws of the State. To this no objection has been made. The charge then submits two subjects of inquiry to the jury; — first, as to the condition of the bridge at the time of the injury complained of; secondly, as to the prudence or imprudence of the plaintiff.

As to the first, the degree of strength to be required for the bridge should depend upon the variety of business and travel done on the road, including droves of cattle; and the test of strength insisted on by the defendants, to wit — an ability to sustain the heaviest loaded teams that travel on the road, was not the only one ; but that to excuse the defendants, the bridge must have been sufficient to sustain a drove of cattle, provided they were passed over with common care and prudence. Here lies the gravamen of the defendants’ exceptions.

It is not very apparent why the heaviest loaded teams should be considered the criterion, unless it is that they are more ponderous than any other property that ordinarily passes, save droves' of cattle, and that therefore, if the bridge was sufficient to sustain such teams, it would be sufficient for all purposes, except for passing droves of cattle. For if it requires a bridge no stronger to pass a drove of cattle than the heaviest loaded team, as this bridge broke down under a drove of cattle, therefore it was not of sufficient strength to sustain the heaviest loaded team.

But if more strength in a bridge is required' to pass a drove of cattle than a loaded team, as the request to charge supposes, then the request is in substance, and would have been more categorical to have requested the court to charge that the company was not obligated to provide a bridge sufficient to sustain, a drove of cattle passed in the ordinary way; and this is the real question. At and before the passing of this grant, this was a cattle-growing state, and Boston the emporium for beef; thence cattle had been constantly driven from a thousand hills in the interior.

And in the tariff of toll we find this clause : “ For all horses, mules or neat cattle, led or driven, beside those in teams, one cent each,” — which the company have accepted and acted upon; and would it not be absurd to suppose that the company are entitled to take toll upon a drove of cattle, and not furnish a passable bridge or road?. And as the grant does not define the number of cattle that may pass the-turnpike, and the manner in which they are to be conducted' or. driven, what but the custom of the country where the road; is located, the wants and usages of the community, can be -the-' rule ?

This requires the proprietors to do no rnore in point of strengt^ an^ solidity in their roads and bridges, than the towns are bound to do on all public roads of equal importance; and w^at ^a^e undertaken to do in consideration of the tolls. And as to the manner of driving the cattle on to and over the bridge, the jury were properly left to consider whether that was done with common care and prudence; and it is quite clear that this was correct — there was nothing wrong in the charge.

As to the motion in arrest, it is apparent that the most that the defendants can make of it is, that the plaintiffs’ case is that of a right or title defectively alleged, which is always aided by verdict. As he declared upon the grant or act of incorporation, relating some part of it, this gave him a right to give the act in evidence; and nothing objectionable appearing in what is related, it shall be intended that all the requisites to a recovery were shown; otherwise the jury, under the direction of the court, would have found a verdict for the defendants. The judgment of the county court is affirmed.