Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1855-01-26
Decisions of the Supreme
Court.
CHTTTENDEN COUNTY.
Dire. TrRN 1854.


CHITTENDEN COUNTY
Ore. TERM 1854.
January Is, 1865.
lforser X. 4 ~ II. n. Co. Case for killing
plaintiffs cows by a train on the defendants
road. he'd per BFSsrrr, Judge. affirming
the Judgment below, that the duty of the
defendant to fence its road, only exists as
between it and adjacent land owners and
therefore one not an adjacent land owner,
could not maintain an rction for damages
for an injury to his cattle, founded on the
neglect Of the Company 10 fence its road -
that whether the train of the defendant was
ncgligenily managed on the occasion Of the
injury, was question Of fact for the jury, to
be determined upon all the attending circum-
stances, and that the Court below was right
in refusing to instruct the jury that any par
ticular mode or speed of running a tram
was negligence as matter of law.
W. W, Peck and Underwood & Hard for
plaintiff; Phelps g. Chittenden, and ID. a.
Smalley, for defendant.
Thompson . Prouiy. Assumpsit. The
defendant contracted with the plaintiff to
make an expedition to California. and labor
so much Of the year leil as would give him
time to reach home by the first day OF De
cember Of shat year, and that then he would
equally divide with the plaintiff the en- ire
uvalls OF the trip. The defendant labored in
California under the contract tlll the period
of returning arrived, ahd then sent 10 the
plaintiff a sum less than one half Of all the
proceeds, then on hand. but more than one
half of such proceeds, after dcduc,ing rea-
sonable sum for the expenses of return.
The defendant remained IN California TIL the
&nrtp.f Of 1871 kplqu lu rasnrx,.t Ia IN
the mean time accumulated further sums,
Held per BENNETT, Judge, reversing the
Judgment below, that the defendant was not
bound to account for the Accommodations made
after the period for return had arrived, but
that he had no right, If he chose to remain in
California, to retain anything out of the
proceeds Of his labor for his return expenses
aud That he was liable TO account for one half
the funds on hand at that time he had chosen
to make the division
Levi Underwood and +. X. Hard, for
plaintiff Goo. F. Ednunds for defendant.
Barter T. The Torn Of Esser Case The
declaration stated that certain highway IN
said town was out Of repair, and full of holes
and excavations, and that by reason thereof
the plaintiff N travelling thereon was injured.
I It appearcd that the highway had been - bout
four months before the injury crossed by the
VT g. c. X. X. Co., BY its road, aud deep
cut made therein IN consequence (but this
dad not appear to have been done under any
legal right which made the highway entirely
impossible. The Company therefore built a
bridge across the railroad, ab nj ID rods from
the cut, and turned the travel across il, and
into the highway on the other side Of the cut,
but no sufficient barriers were put NO to in.
y Il.
old highway way dangerous The town did
not appear to have had any agency in this
change of the road aud travel. Tae plaintiff
was travelling on said highway in the night
and being ignorant, Of the GLANCE, and not
seeing the bridge, passed 1t, aud drove into
snid cut. Hddp per REDriKLp, Chief Justice
affirming the Judgment below, that the pro
supported tho declarations; that there was no
evidence OF an abandonment, or discontinue
/ ance, OF the old highway; that whether the
night was so darl, AS to rem er inprudcnt 10
travel. was question offered for the Jury -
that the plaintiff having proved the iusuilici-
ency Of the highway, aud that the injury was
caused by It, had made prina .f;icic case
and that the burden of proof WIS thus thrown
upon the defendant to show that the town
was bound III this case 10 provide a safe and
proper passage for the traveller, and to pre-.
vent his taking the old road and driving into
the cut, by barfires reasonably suilicienr fol
that purpose.
A. b. MAYNARD and Geo. F. Elmunds, foi
the plaintiff; J. Mack, Tor the defendant.
Sidcyu u. c. Il H. Go. Debt on aware
OF land damages by commissioners appointed
under the charter Of the defendant The de-
PENDANT had, under It's charter, located its
road upon the land Of the plaintiff. Befor,
the award of damages, the defendant by per
mission Of the plaintiff commenced building
IT'S road upon the plaintiffs land Aftcrwar,,
the damages we're duly appraised by tn,
Commissioners. The defendan. after the
appraisal, and without paying the damages
-, dOP.~,'.~, .i...n ~ a 'OdnK rs provided to
by the charter. changed the location of IT,
road. under an authority granted IN the char
ter, SO that 1t did not cross the plaintiff
land and abandoned the first location. Tn,
chtrter provided that the company after III,
ap9rlsal Of lands by the Commissioners, .p
ON paying TO the owner the damages awarded
or deposliing the same in a bank, should b,
deemed to be seized and possessed of Tia,
land IN respect to which the damages shoul,
be- awardad. He'd per lsnAM, Judge, re
vcrsung the judgment below, that the right,
of the land owuer and The company wer,
under the charter co incident aud reciprocal
that the plaintiff could not acquire rssiei
right TO the damages, until the defendant ac
qulred rested right to the land and that a
by the provisions Of the charter the defend
ant had not acquired vested right To tn,
land by payment or deposit, at the time o
the change Of locations, the plaintiff coul,
not recover
ID. A. Smalley and J. Mack. for the plain
tiff; Il. J. Phelps a. l.. f. Chuenden, TO
! tb. de nl,ut - Eree Dr,ss