Brown v. Town of Swanton
Supreme Court of Vermont
Action on the case, under R. L. 2138 and 2139, for damages to wife and next of kin resulting from the death of the plaintiff’s intestate from an injury alleged to have been received through an insufficiency in the defendant’s highway. Plea, the general issue. Trial by jury at the April Term, 1895, Franklin County, Tyler, J., presiding. The absence of a record of the highway should have been shown, if at all, by the town clerk.
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Action on the case, under R. L. 2138 and 2139, for damages to wife and next of kin resulting from the death of the plaintiff’s intestate from an injury alleged to have been received through an insufficiency in the defendant’s highway. Plea, the general issue. Trial by jury at the April Term, 1895, Franklin County, Tyler, J., presiding. The absence of a record of the highway should have been shown, if at all, by the town clerk. A layman cannot properly testify to the absence any more than to the existence of a record. The plaintiff should not have been permitted to testify that the highway had…
1Opinion of the CourtMunson, J.
The testimony of witnesses other than the town clerk was admissible to establish the fact that there was no record of the laying of the road. In Hill v. Bellows, 15 Vt. 727, where it is held that the certificate of the town clerk is not evidence that there is no record of a conveyance, it is said that legitimate proof of that fact would be the oath of the town clerk or of some one who had examined the records.
The fact that a road is a public highway may be established by evidence that the town has recognized it as such by expending highway money in its repair. Page v. Weathersfield, 13 Vt.…
2Cases cited2 opinions
- Hill v. BellowsSupreme Court of Vermont · 1843
- Page v. Town of WeathersfieldSupreme Court of Vermont · 1841
3Cited by6 opinions
- Johnson v. Charles William Palomba Co.Supreme Court of Connecticut · 1932
- Way v. FellowsSupreme Court of Vermont · 1917
- Fowlie's Admx. v. McDonald, Cutler & Co.Supreme Court of Vermont · 1909
- Neeley v. Town of CameronWest Virginia Supreme Court · 1912
- McCarthy's Admr. v. Village of NorthfieldSupreme Court of Vermont · 1915
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