Noyes v. White River Turnpike Co.
Supreme Court of Vermont
This was an action of trespass on the case for damages occasioned to plaintiff’s horses, wagon and harness, through the insufficiency of the defendants’ road in Royalton. The plaintiff, in his declaration, averred, that the defendants laid out, constructed and opened their road in October, 1803, agreeably to their charter, and that the injury happened “by reason of the road being out of repair, and the badness thereof.” Plea, general issue. Issue joined to the country.
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This was an action of trespass on the case for damages occasioned to plaintiff’s horses, wagon and harness, through the insufficiency of the defendants’ road in Royalton. The plaintiff, in his declaration, averred, that the defendants laid out, constructed and opened their road in October, 1803, agreeably to their charter, and that the injury happened “by reason of the road being out of repair, and the badness thereof.” Plea, general issue. Issue joined to the country. Upon the trial in the county court, the plaintiff read in evidence the act of incorporation, from which it appeared that the…
1Opinion of the Court
The opinion of the court was delivered by
Bennett, J.
The declaration alleges that the injury happened “by reason of the road being out of repair, and the badness thereof,” and it is urged, in argument, that the evidence showing that the road, in its original construction, was insufficient and unsafe, constitutes a variance, though such insufficiency continued down to the time of the injury complained of. Though the law in regard to variances, is, in many instances, very nice, yet, we think this objection without foundation. Notwithstanding the expression, “being out of repair,” may, as has…
2Cited by1 opinion
- Preston v. St. J. &. L. C. Rd.Supreme Court of Vermont · 1891