Hiram K. Hunt & Wife v. The Town of Pownal, 9 Vt. 411

The opinion of the court was delivered by Redbuelo, J. It is not necessary to go into the discussion of the ancient learning on the venue of actions. That subject is iamiliar to the profession, and it is well known it had reference to the selection of the jury from the vicinity of the transaction, or the residence of the parties, on some supposed ground ol their being, on that account,' more competent triers. Experience has, however, demonstrated, that such isnot always, — perhaps not often, — the case, and sometimes the reverse is obviously true.

In this State, the place of trial is fixed with reference to the residence of the parties, with the exception of the actions of ejectment and tresspass on the freehold, which mustie brought in the county where the lands lie. When the parties both reside out of the State, or the defendant resides out of the State, and the plaintiff within the State, the suit may be brought in any county in the State. If both parties reside within the State, as in this case, the action may be brought in the copnty where either party resides.

These plaintiffs, residing in Rutland County, had, by the general provision of the statute, the right to bring their suit here. The action does not come within the exception of the statute as to actions of ejectment and trespass on the freehold. The statute has made no other actions strictly local. And we see no good reason why it sjiould have done so. This statute was framed by eminent'jurists, and we are not to suppose they were ignorant that inariy actions, at common law, were local.

We think, then, it may well be supposed the legislature did not intepd to make any other actions local, with reference to the county. If the cause of action accrued without the State, it would * be very questionable whether this action could be sustained; — mot that it is an action for nuisance, or for obstructing a public or private way; — but for an injury resulting from the default of defendants to perform a duty, imposed by statute, and in itself concerning, intimately, the internal police of the State. And, in either case, the remedy is confined to the forum of the place, where the cause of action accrued.

In regard to the other point in the case, it is well settled that the plaintiff or his agent is guilty of any negligence, either m driving, or in the construction or repair of Ins carriage, harness, fee. whereby the injury is, in. any manner, or any part, hastened or produced, be cannot recover, although the want of repair of the road might have conspired to produce- or aggravate the injury. But in this case, the jury have found, that the plaintiff s’ agent was gui^y °f no such negligence.

But they were told by the court, although the nut or bolt was insufficient, and this through the neglect of the owner of the carriage, still the plaintiffs would be entitled to recover. If this were so, this circumstance, (or accident, so far as plaintiff is concerned,) formed the proximate cause of the injury, and the jury have found virtually, that, had the road been in suitable repair, the injury would have been prevented. The loss, then, is the combined result of accident and of defendants’ neglect to repair the road. We think, under such circumstances, the defendants are liable for the loss.

It is no doubt true, that, had the accident not occurred, no damage would have been sustained. And had the defendants performed their duty, the sapie result would have followed. And if in every case,.where injuries are produced by accidental causes, conspiring with the insufficiency of roads, towns and corporations are not liable, a case cannot well be supposed, in which they would be liable.

For it is well settled, that, when the highways are notoriously insufficient and out of repair, so that nothing, but the most downright fool-hardiness, would tempt one to venture upon them, corporations will not be held liable for damages sustained by those, who attempt to pass them. Apd if the highways are in any apparently tolerable condition for passing, it can hardly be supposed, that, with the niost perfect carriage and harness, and most docile and manageable team, with skilful driving, any loss would occur.

The liability of corporations, to afford any security to travellers, must be for similar injuries to the present. If the injury would have been prevented, had the road not been insufficient, or out of repair, the loss, injustice, ought to fall upon the corporation, unless the plaintiff has conducted in such a way as to increase the hazard. Ip every case of damage, occurring on the highway, we could /suppose a state of circumstances, in which the injury would not have occurred.

If the team had not been too young, or restive, or too old, or too head-strong, or the harness had not been defective, or the carriage insufficient, no loss would have intervened, is to guard against these constantly occurring accidents, that towns are required to guard, in building highways. The traveller is not-bound to see to it, that his carriage and harness is always perfect, and his team of the most manageable character, and in the most perfect training, before he ventures upon the highway.

If he could be always sure of all this, he would require any further guaranty of his safety, unless the roads were absolutely impassable. If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the insufficiency of the road, conspiring with some ’ accidental cause, the defendants are liable. " The judgment of the county court is, thereforej affirmed;