bridge, and it appeared that such lights were | and the traveled track of the highway was out, evidence held to make it a question for the further obstructed by the materials, a derrick, jury whether plaintiff was guilty of contributory negligence. 4. Negligence

136(14)-Negligence a question for jury, where there is no settled rule of diligence.

Where the law has settled no rule of diligence, negligence is ordinarily a question for the jury, as it is a fact to be inferred from the attending circumstances, and it can be ruled as a matter of law only, where the facts are undisputed and are so conclusive that but one reasonable inference can be drawn therefrom. 5. Highways 213(2)-Negligence of town in failing to guard culvert in course of repair held for jury.

In an action against a town for personal injuries sustained by plaintiff at a bridge under repairs, evidence as to the insufficiency of the barriers and failure to provide adequate warning lights held to make defendant's negligence a question for the jury.

and a dirt box used in making the repairs. The evidence was somewhat meager with respect to barriers. One witness speaks of "some dirt and some boards or stuff of that nature on either side of the sluice," and on the east side "some dirt, some boards or lumber, and some guy wires." Another witness testified that, besides the materials for work on the culvert, there was, as he remembered it, on the west side of the culvert, 30 or 35 feet from it, a stick with one end on a pile of dirt, or a post, with a lantern hanging on it, and on the east side, 20 or 25 feet from the culvert, a similar barrier-"perhaps a little heavier stick." The plaintiff describes the barrier on the east side (the side on which he approached the culvert at the time of the accident) as a plank, one end on a pile of dirt and the other end on the ground, low enough so that the horse he was driving stepped over it. As a further precaution, three lanterns

Exceptions from Franklin County Court; were placed in the vicinity of the culvert, one Stanley C. Wilson, Judge.

Action by George Britch against the Town of Sheldon. Verdict directed for defendant, and plaintiff excepts. Reversed and re-manded.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

M. H. Alexander, of St. Albans, for plaintiff.

hanging from the barrier in the highway on each side of the culvert, and the third from a post in the temporary bridge. These lanterns were burning as early as 7:30 o'clock on the evening before the accident, but whether

they were there when the plaintiff passed,

about a half an hour earlier, did not appear. He makes no mention in his testimony of having seen the lanterns at that time. Before midnight all the lanterns, except the one in

Elmer Johnson, of St. Albans, for de- the highway west of the culvert, had gone out.

fendant.

TAYLOR, J. The plaintiff seeks to recover damages occasioned by the alleged negligence of the defendant town in not maintaining a

of the accident.

The globe of that lantern was then badly smoked, and it was apparently nearly ready to go out, being then scarcely visible to one approaching the culvert from the east. Neicertain bridge or culvert on one of its high-ther of the lanterns were burning at the time ways in a safe condition for travel. The trial was by jury. At the close of the plaintiff's evidence the court, on motion, directed a verdict for the defendant, to which the plaintiff saved an exception. The grounds of the motion were in substance that on the undisputed evidence (1) plaintiff's accident occurred at a place on the highway other than on a bridge, sluice, or culvert, or the approaches thereto; (2) there was no shortage of legal duty on the part of the defendant; (3) the plaintiff was guilty of negligence contributing to the injury complained of. The court held that the case was for the jury on all grounds except the last, but that on the plaintiff's own testimony he was guilty of contributory negligence as matter of law. The evidence in the light most favorable to the plaintiff tended to show the following facts:

The accident occurred at a small bridge or culvert on the main highway in the defendant town leading from Enosburg Falls to Sheldon. The town authorities were repairing the culvert, and had provided a temporary byway around it. The culvert had been torn out,

The accident occurred about 2 o'clock in the morning of the night of August 13, 1916. The plaintiff, then 26 years old, was employed as a farm hand in the town of Sheldon. He was somewhat acquainted with the highway in question, though "not awful well," and had driven over it a few times in the previous four or five years. On the evening before the accident he had occasion to go to Enosburg Falls, and passed the culvert about 7 o'clock; the sun being still up. He noticed (so far as appeared for the first time) that the culvert was undergoing repairs, and realized that one had to take the byway to pass it. The horse he was driving was about six years old, a safe and quiet driver, and fairly good to follow the road at night. He had owned her for about a year and a half, and had driven her a good deal, principally at night, as he had to work daytimes. On the return trip, plaintiff left Enosburg Falls about 2 o'clock in the morning. It was very He was dark, and had commenced to rain. riding alone, in a buggy with the top up, and

(110 A.)

was smoking. He stopped to water his horse | so forgetful, without losing the right to be at a trough about half a mile east of the cul- called a prudent man in the circumstances. vert, and, being chilly, put on an extra coat. Kane v. Northern Cen. Ry. Co., 128 U. S. 91, The material part of his testimony as to the 9 Sup. Ct. 16, 32 L. Ed. 339, cited in Kilpathappening of the accident was as follows: rick v. Grand Trunk Ry. Co., is a leading "After I left the watering trough, * * I case on the question. It is said in Roseberry was driving just a fair road gait, letting the V. Niehaus & Co., 166 Cal. 481, 137 Pac. 232, mare take her own gait, and it never entered that to forget is not negligence, unless it my head about that bridge, not seeing any lights shows want of ordinary care. or anything; and the first thing I knew she come right up, she kind of slowed up a little, and I pulled up on her, and she just stepped over something. I didn't know at the time what it was, but did shortly afterwards. was a plank, one end of it on a pile of dirt, and the other end on the ground. I heard a lantern go, and I set right up on her; but the plank shoving scart her. My hind wheel caught the guy wire holding the derrick, and when it did it threw me right over the mare, and she went off on the other side of the bridge into the slough hole, buggy and all."

It

Plaintiff testified further in cross-examina

tion that after leaving the water tub he let the mare go exactly as he would if he had known the road was all right; that he wouldn't have trusted her to go by herself around the byway; that, if he had thought anything about it, he should have known that he would have to guide her. In answer to the question:

"On your way home that night, what did you do in the way of exercising some care or precaution to find this place in the road where the sluice was being put in?"

-he said:

The effect of temporary forgetfulness of a known danger on the question of contributory negligence has frequently arisen in actions growing out of injuries on highways. Our attention has been called to several such cases in other jurisdictions; but these and kindred cases can only serve to illustrate the principle stated above. It is impossible to formulate any other general rule, so much depends upon the circumstances of the particular case. Speaking generally, it is not deemed to be negligence as a matter of law for a person who has knowledge of a defect in the highway not to remember it at all times and under all circumstances, and he is not necessarily prevented from recovery because he is not thinking about it, or has momentarily forgotten it, of such forgetfulness may properly be conat the time the injury occurs, though the fact sidered on the question of his negligence. 13 R. C. L. 481. It has been held in some jurisdictions that it cannot be said, as a matter of law, that a person injured by reason of a defect in a highway was necessarily negligent because the existence of the defect was known to him prior to the happening of the accident, and he, having temporarily forgotten this fact, failed to avoid the danger. In "I didn't think anything about it. I thought other jurisdictions the view is adopted that it would be lighted. It didn't enter my head." the forgetfulness of danger known to the per[1] No question is made but that the evi- son injured constitutes negligence which will dence was at least sufficient to make the quesbar a recovery, in the absence of any further tion of due care on the part of the plaintiff evidence, but that the forgetfulness may be one of fact for the jury, if he had not pre-explained, so as to make the question of conviously known the condition of the highway at the place of the accident. Nor, on the other hand, is it claimed that he was not guilty of contributory negligence as a matter of law, if he should have kept the obstruction in mind and exercised active care to avoid it. The controlling question is whether, in the circumstances, his temporary forgetfulness of the danger was in law sufficient to defeat his right of recovery, or, in other words, whether a jury would be justified in finding on the evidence that he was exercising the care of a prudent man in the circumstances, notwithstanding his temporary forgetfulness. It was said in Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 303, 52 Atl. 531, 93 Am. St. Rep. 887, that the prudent man is not the man who never forgets, who is never guilty of inattention, who never fails to think of any possible danger that is, the perfect, the infallible man; that attention must be given to the circumstances, and that circumstances may excuse forgetfulness whenever the jury may

tributory negligence one of fact for the jury. See note Ann. Cas. 1913D, 36, where many cases are collected and digested.

[2] There is little, if any, disagreement in the cases that the ultimate question is whether the injured party was exercising the care and prudence of a prudent man in the circumstances, notwithstanding his forgetfulness. When in the particular case the controlling question is whether forgetfulness of the danger is in law sufficient to bar a right of recovery, a safe and workable rule, and one supported by the weight of authority, is that something more than mere lapse of memory must be shown to excuse one for momentary forgetfulness in the presence of a known danger. It must have some reasonable cause or explanation apart from mere inattention, as, for example, that the attention was diverted or the failure to remember explained by some other good cause. Knoxville v. Cain, 128 Tenn. 250, 159 S. W. 1084, 48 L. R. A, (N. S.) 628; Hodge v. St. Louis, 146

ville, 111 Wis. 348, 87 N. W. 241, 1087; Lyon [3, 4] With this element in the case, we v. City of Grand Rapids, 121 Wis. 609, 99 N. think the circumstances fairly entitled the W. 311; Sanderson v. Chicago, etc., Ry. Co., plaintiff to go to the jury on the question of 167 Iowa, 90, 149 N. W. 188; Kelly v. Black- contributory negligence. It would not be unstone, 147 Mass. 448, 18 N. E. 217, 9 Am. St. reasonable to say that it was not negligence Rep. 730; George v. Haverhill, 110 Mass. 506; for one casually finding such an obstruction note Ann. Cas. 1913D, 36. The application of in a highway, which he knew he was to rethe rule is well illustrated in George v. Hav- trace in the darkness, relying upon the expecerhill, supra, where the accident happened in tation that he would find the place suitably the evening about 8 o'clock, and the obstruc- lighted, to fail to keep it in mind. Where the tion was not of a character to attract imme-law has settled no rule of diligence, negligence diate attention, and was obscured by the is ordinarily a question for the jury, as it is a shadow of trees. It was held that the fact fact to be inferred from the attending circumthat the plaintiff knew of the defect, but was stances. It can be ruled as a matter of law not thinking about it, was not conclusive only when the facts are undisputed, and are against his right to recover, but was a cir- so conclusive that but one reasonable infercumstance to be considered by the jury. ence can be drawn therefrom. If the evidence justifies opposing inferences, the question is always for the jury. Place v. Grand Trunk Ry. Co., 82 Vt. 42, 53, 71 Atl. 836; Place v. Grand Trunk Ry. Co., 80 Vt. 196, 202, 67 Atl. 545; Barber v. Essex, 27 Vt. 62, 70; 13 R. C. L. 521, § 433.

The defendant takes too narrow a view of the character of the explanation that will carry the question of contributory negligence in such a case to the jury. While it more frequently happens that the excuse offered is that the attention of the injured party was diverted from some cause, yet by no means is that the only available explanation. Any fact, condition, or circumstance affording a reasonable basis of an inference of ordinary care is sufficient. The defendant loses sight of the turning point in this case in its attempt to distinguish it from some of those

cited by the plaintiff. As we have already indicated, plaintiff's conduct, unexplained, except that he forgot, would, without extenuating circumstances, defeat his recovery as a matter of law, which leaves as the only question whether the evidence discloses a reasonable cause for his temporary lapse of memory. The court apparently fell into the same error, as, in disposing of the motion for a directed verdict, it laid stress upon the fact that the evidence did not show that anything occurred to divert the plaintiff's attention, although reference is made to his right to suppose that the place would be lighted on his return; the court saying that he would have no reason to expect there would be any lanterns there when he came back. But this is a false assumption. While it may be that it is a fair inference from the evidence that there were no lanterns there when he first passed the culvert, or at least that the lanterns were not then lighted, still he had a right to rely upon the usual precautions being taken to warn travelers of the obstruction, and that he did so rely is shown by his testimony to the effect that he supposed the culvert would be lighted. See Campbell v. City of Boston, 189 Mass. 7, 75 N. E. 96.

The defendant urges in support of the ruling below that there was no evidence in the case tending to show a shortage of legal duty on its part in guarding the place where the repairs were being made, and cites Mullen v. Town of Rutland, 55 Vt. 77, in support of this claim. While the circumstances of that case were in many particulars similar to those of the case at bar, the question decided in this court has no application here. The question of liability was submitted to the jury under a charge that was satisfactory, except in one particular not material on this record, and the jury returned a verdict for the defendant. The portion of the charge excepted to was to the effect that, if the person in charge of the repairs fully discharged the duty of the town at the close of the day's work by way of precaution against accident to travelers in the nighttime, the town was not liable, although the barricade was afterwards rendered insufficient by accident or malicious interference. This was to meet a special issue in that case, and the decision of this court sustaining the charge does not cast doubt upon the ruling below in the instant case.

[5] The evidence detailed above fairly tended to show shortage of duty on the part of the defendant, both as to the sufficiency of the barrier and the condition of the lights, and the trial court correctly held that the question of the defendant's negligence was one of fact, and not of law.

Reversed and remanded.

(110 A.)

notified him that the trade was rescinded. He demanded a return of the bay horse Exceptions from Orange County Court; which he traded to the defendant, and ofFred M. Butler, Judge.

fered to return the stallion and what he had Trover by Carl Bombardier, by next left of the boot money on the following day friend, against Alfred Goodrich. Judgment at the place where the original trade was for plaintiff, and defendant excepts. Affirmed.

[4] Nor was the validity of the rescission in any way affected by the fact that the plaintiff offered to pay back only $40 of the $50 boot money. He had spent $10 of this money for veterinary services for the stal-nuptial and postnuptial contracts, which dilion, and the law required him to return only what he had left of it. Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194.

The case was referred to a special master to find and report the facts. The case was subsequently heard by the master, and his report was filed with the chancellor, who In a suit to specifically enforce antenuptial made his decree, overruling certain excepcontract, defendant cannot claim on appeal the tions by the defendant to the master's findright to recover the $500 by which the Legisla-ings of certain facts, and decreeing that de