(110 A.) did not err in overruling the motion for a di- [ployé elects to forego the benefits of the act, rected verdict. he is entitled to recover full damages in a common-law action for negligence. Moreover, this accident occurred before the act took effect, and injuries sustained prior thereto are expressly excluded from its provisions. G. L. 5773. [5] Eleven grounds of the motion to set aside the verdict are assigned, but we need to notice only such as are the basis of the points made in the brief. The claims under the motion all relate to the question of damages and challenge the verdict as being excessive and [7] The defendant contends that independnot warranted by the evidence. The defend-ently of the Workmen's Compensation Act ant recognizes the well-established rule that the verdict was excessive and should have a motion to set aside the verdict as against the evidence is addressed to the discretion of the trial court and that its action will not be disturbed on review, except for abuse of discretion, or unless the verdict is wholly unsupported by the evidence. French v. Wheldon, 91 Vt. 64, 99 Atl. 232. The accident occurred May 21, 1915, and as a result the plaintiff suffered total loss of eyesight. There was evidence tending to show that his hearing was affected by the explosion; that his right arm was so burned as to impair its use down to the time of the trial; and that his nervous system was shattered so that both arms shake and he is not able to sleep normally. Plaintiff was 56 years of age at the time of the accident and had previously been strong and enjoyed good health. His weekly wage was then $15.84, which the defendant continued to pay until the bringing of this suit in April, 1916. He was obliged to employ an attendant at an expense of at least $6 per week. The jury awarded $11,000 damages. been set aside. The argument in support of this position is such as might properly be addressed to the trial court in support of the motion, but it fails to point out reversible error as the question must be regarded on review. It cannot be successfully maintained that the verdict was without any supporting evidence, nor is it claimed that the court withheld the exercise of discretion. We are unable to agree with the defendant that the refusal to set aside the verdict as excessive was an abuse of discretion. The correctness of this conclusion is confirmed by the defendant's computation. It is said in the brief that if the Workmen's Compensation Act is to be disregarded the court should have limited the recovery to $8,546.48. This sum is arrived at by taking the present worth of plaintiff's loss of wages for 17 years, the probable length of life of a man of his age as shown by mortality tables, and deducting the sum paid the plaintiff as wages after the accident. Assuming that this sum would be the recover for loss of earning capacity, it would by no means cover all the elements of damage which the jury had to consider in making up their verdict. Damage for pain and suffer pensation, the extra expense for care made necessary by loss of sight, to say nothing of the damage for the physical impairment itself, easily account for the excess of the verdict. [6] The defendant's claim that the dam-maximum amount that the plaintiff could ages are excessive is based primarily upon the claim that the plaintiff is limited in his recovery to the maximum amount fixed for such injuries under the Workmen's Compensation Act. The argument is that, thoughing, the damage for delay in recovering comthe act did not become effective until July 1, 1915, from the date of its passage, April 1, 1915, the Legislature had provided a standard or criterion of measurement for compensation for injuries such as the plaintiff received, beyond which the jury could not lawfully go in awarding damages. The novelty of the claim is evidenced by the fact that defendant's counsel, who cannot justly be charged with want of diligence, do not support it by citation of any authority. The defendant loses sight of the fundamental differences between compensation under the Workmen's Compensation Act and the action for damages for negligent injuries. They are based upon wholly different grounds of liability. The compensation under the act is essentially like insurance against accident arising out of and in course of the employment. In consideration of the numerous benefits of the act, if he elects to avail himself of them, the employé is required to forego his common-law remedy for damages. But the limited recovery by way of compensation was not intended to restrict the damages in an The seventh ground of the motion presents the question whether the verdict should have been set aside for want of evidence of the probable length of the plaintiff's life as affecting the length of time that he would probably suffer from his injuries, the point being that the amount of plaintiff's damages, in the absence of such evidence, was a matter of speculation, and therefore the verdict should be set aside. [8, 9] Mortality tables are generally recognized as proper evidence in cases of this character, but we know of no case holding that they are indispensable evidence. In fact, defendant's counsel say that they have been unable to find a case sustaining their contention and that the only case found where the point was raised was decided the other way. However, a motion to set aside the verdict was not a proper way to challenge the defendant was entitled to on account thereof should have been taken before the verdict by request to charge or by exception to the charge as given. But it is quite ap parent that the jury did not go astray in determining the probable length of the plaintiff's life unaided by this evidence, as is shown by the defendant's computation based on the mortality tables; so at best any error in this regard is not shown to have been harmful. By the four remaining grounds of the motion an attempt is made to raise a constitutional question. It is claimed that to hold the defendant liable for more than $3,250 (the maximum amount of compensation under the Workmen's Compensation Act) is to deprive the defendant of its property without due process and to deny it the equal protection of the law, in violation of article 14 of the Amendments to the Constitution of the United States; and that a failure to set aside the verdict on the several grounds specified in the motion is in violation of the same article. The defendant contents itself with disposing of these questions by merely stating the claim that its constitutional rights "are infringed and violated in the respects set forth if the verdict and judgment of $11,000 are allowed to stand, or if no consideration whatever is given to No. 164 of the Laws of 1915 (the Workmen's Compensation Act), or its claims in the respects indicated in its motion are not sustained." It is not clear that anything more is claimed than that the plaintiff's damages are fixed by the Workmen's Compensation Act; at least, the only point made with sufficient definiteness to require attention relates to that act, and that it has no application here already sufficiently appears. We fail to find that the court erred in refusing to sustain the defendant's motion to set aside the verdict. [10] It is said in the brief that the defendant relies upon exceptions taken to the failure of the court to charge as requested in 11 requests and to the charge as given on the subject-matter of those requests; also, that it relies upon 25 exceptions to the ruling of the court in the matter of the admission of evidence. None of these exceptions are briefed further than to refer us to the pages of the transcript where it is said they can be found and the point of the several exceptions ascertained. This is not such a briefing of these execeptions as brings them before us for review. Drown v. N. E. Tel. & Tel. Co., 81 Vt. 358, 372, 70 Atl. 599; Carleton v. Fairbanks & Co., 88 Vt. 537, 556, 93 Atl. 462; Gordon v. Deavitt, 85 Vt. 338, 81 Atl. 1128; Hopkins Tr. v. Sargent's Est., 88 Vt. 217, 222, 92 Atl. 14; Drown v. Oderkirk, 89 Vt. 484, 489, 96 Atl. 11; Bixby v. Roscoe, 85 Vt. 105, 113, 81 Atl. 255. Judgment affirmed. 2. Easements 35 Necessity of pleading easement depends on practice act and not on common law. Under the Practice Act which abolished the common-law distinction between case and trespass as to matters of pleading, the question of the necessity of specially pleading an easement in defense no longer depends on the commonlaw rule as to the scope of the general issue in trespass and case. 3. Easements 35-Easement by prescription is affirmative defense which must be specially pleaded. Under the Practice Act (G. L. 1791, subd. 2), requiring matters relied upon as an affirmative defense to be specially pleaded unless otherwise provided by statute, a general denial does not authorize reliance on an easement by prescription, the burden of proving which is on defendant. 4. Easements 35-Provision giving general denial force of general issue does not relieve from pleading affirmative defense of prescriptive easement. Provision of the Practice Act that the general denial shall, unless otherwise provided, have the same force as a general issue at common law which was adopted after the original act to provide a substitute for the plea of general issue, merely authorizes a general denial to put in issue the material allegations of the declaration, and does not permit reliance on an easement by prescription under the general denial. 5. Waters and water courses 164-Flooding of increased amounts of land gives damages under easement only as to quantity flooded for 15 years. In an action against railroad company for damage caused by the flooding of plaintiff's land by obstruction placed by the railroad company in a stream where the evidence showed that at first only a small portion of plaintiff's land was flooded, but that the quantity increased from year to year, an easement by prescription could only affect the damages as to the land which had been flooded for 15 years, not as to all the lands which had been flooded within recent years. (110 A.) the supposed right, and therefore begins to run only when the right of action accrues. 7. Easements 40-Owner cannot increase burden of servient estate. The owner of an easement cannot increase the burden upon the servient estates nor impose a new or additional burden thereon. 8. Life estates 28 Owner of life estate cannot recover total value of land, but only for injury to life estate. In an action for damages to land and crops by flooding where plaintiffs had only a life estate, evidence offered by plaintiffs for the purpose of recovering the total value of the overflowed land was properly excluded. 9. Appeal and error 274 (3)-Objection to question not sufficiently plain to warrant review. In an action for damage to land and crops from flooding, an exception to evidence bearing on the market value of stock-hay in vicinity of plaintiff's farm because the question does not bring it within the evidence in the case is not sufficiently plain to warrant a reversal. 10. Appeal and error 1052 (2)-Opinion of unqualified witness cured by proof of qualifi cation on cross-examination. The admission of the opinion of a witness as to the value of stock-hay, over the objection that the witness was not qualified to express it, does not require reversal, where the qualification of the witness was sufficiently shown during the cross-examination. 11. Waters and water courses 179(3)—Evidence that overflow was caused by sand, not by obstruction, admissible. In an action for flooding of land caused by an obstruction in a street placed there by railroad company, evidence tending to show that the flooding was caused by sand accumulating in the bed of the river, not by an obstruction, was admissible. Exceptions from Rutland County Court; Fred M. Butler, Judge. Action by Ellen Dernier against the Rutland Railway, Light & Power Company. Verdict and judgment for defendant, and plaintiff excepts. Judgment reversed, and cause remanded for new trial. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. one taken to the charge of the court in submitting to the jury the question of easement. The plaintiff claimed that the defense of easement was not raised by the pleadings and was unsupported by the evidence, while the defendant claimed that an easement could be shown under the general issue and that there was evidence tending to show that the defendant had acquired an easement by prescription to flood the plaintiff's land. In support of the latter claim, the defendant relies upon evidence admitted upon other issues in the case. But the fact that there was evidence in the case tending to show such an easement cannot avail the defendant in the absence of necessary pleadings, for it was to be applied-there being no waiver shownonly as it bore on the issues joined by the parties. Poole v. Mass. Accident Ass'n, 75 Vt. 85, 53 Atl. 331; Griffin v. Martel, 77 Vt. 19, 58 Atl. 788; Probate Court v. Enright, 79 Vt. 416, 65 Atl. 530; Wells v. Boston & Maine R. R., 82 Vt. 108, 71 Atl. 1103, 137 Am. St. Rep. 987; Bradley v. Blandin, 91 Vt. 472, 100 Atl. 920; Nichols v. Lane, 93 vt. 87. Whether the claimed easement was properly in issue depends upon the scope to be given the pleadings under the Practice Act. [2] The complaint is in two counts, both entitled "in a plea of the case." The second count admittedly is in the form of a declaration in case at common law. The plaintiff claims that the first count is a count in trespass. The defendant pleaded a general denial, the statute of limitations, and estoppel. The claim is made that the issue of an easement could be raised under the general denial and was so raised during the trial. It is immaterial whether both counts of the complaint are in the form of counts in case at common law. The Practice Act has abolished the common-law distinctions between case and trespass as to matters of pleading. See Newton v. New York, etc., R. Co., 56 Conn. 21, 12 Atl. 644. As forms of action they have been merged in the action of tort. The necessity or want of necessity of specially pleading an easement no longer depends upon the common-law rules as to the scope of the general issue in different forms of action, but rather upon the construction to be given M. C. Webber and Jas. P. Leamy, both of to the provisions of the Practice Act relating Rutland, for plaintiff. Lawrence, Lawrence & Stafford, of Rutland, for defendant. to the answer. G. L. 1791, subd. II. [3] There can be no doubt that the burden of establishing the claimed easement was upon the defendant. In contemplation of the Practice Act, it is necessary that all matters relied upon as an affirmative defense should be specially pleaded unless otherwise provided by statute. We said in Bradley v. Blandin, 92 Vt. 313, 104 Atl. 11, that this was in accordance with the general rule governing pleadings under reform procedure like [1] The first exception insisted upon is the our Practice Act. It is the manifest purpose MILES, J. This is an action to recover damages alleged to have been caused by the defendant's obstructing the flow of water in Castleton river and thereby setting the water back upon the land of the plaintiff. The alleged obstruction was made upon the defendant's land in the year 1902. [5] The plaintiff also excepted to the portion of the charge wherein the jury was instructed that, if the defendant had caused damage by backwater under claim of right for more than 15 years, it raises the presumption of a grant and establishes the right. This was not a correct statement of the rule applicable to the case in hand. The evidence relied upon by the defendant as tending to show an easement tended to show that at first only a small part of her land was overflowed, but gradually from year to year the overflow increased up to the time this suit was brought, and that now it covers a large part of her meadow; that in 1904 it had covered only a fourth to a half acre of her land; and that slight injury was done to her meadow the first year or two her land was overflowed. The most favorable view that can be taken of the evidence relied upon by the defendant is that its tendency was to show a prescriptive right, if any, in the defendant, to only a small part of the plaintiff's land now overflowed as a result of the obstruction placed in the river. of the act to simplify the pleadings and thus | purpose relied upon as its justification. The eliminate uncertainty as to the facts in issue. easement not having been pleaded was not To that end, the plaintiff is required to set an issue in the case, and the error in submitforth in his complaint in brief and simple ting it to the jury requires a reversal. language the facts relied upon and the relief demanded. In turn, the defendant is required to answer either by a general denial, or by a specific denial of the allegations of the complaint or some of them, or by a brief and simple statement of the facts relied upon in defense. The denial, general or specific, of all the allegations of the complaint, puts the plaintiff to the proof of every material allegation; but the defendant is not at liberty to raise false issues by this means and cannot safely do so, as he is liable to be penalized in costs for making such a denial without reasonable cause. G. L. 1792. His denial should be confined to the facts in dispute. If he relies upon special matter in defense, he must give notice thereof by proper allegations in his answer, which the plaintiff, in turn, must deny, or avoid by stating the facts relied upon to meet such allegations. There is no longer such a thing as the general issue with notice, nor can the defendant both deny and confess and avoid the allegations of the complaint. As in equity pleadings, the answer should state all the grounds of defense upon which the defendant relies; but it cannot contain inconsistent defenses. Bradley v. Blandin, supra. [4] The only support of the defendant's position afforded by the Practice Act is found in the provision that the general denial "shall, unless otherwise provided, have the same force as a plea of the general issue at common law." But we do not think that the Legislature thereby intended to restore the general issue with all its common-law incidents, for that would defeat the spirit and purpose of the act. On the contrary, we think it was intended to give the general denial the same "office" as the general issue has at common law, which as a "pleading" does nothing more than to put in issue the material allegations of the declaration. No provision for a general denial was embodied in the original act, but it was incorporated in the subsequent revision of the statutes. The commissioner on revision recommended that "provision be made authorizing a sub-plaintiff could not recover damages for land stitute for the plea of the general issue, in view of the statutes which refer to that plea and state what may be shown thereunder." See report on Revision, 179. In view of the avowed purpose to harmonize the provision of the statutes relating to an answer with those referred to specifying what might be shown under the general issue, it is not to be supposed that the legislative intention was to go further and "graft a wild olive" on the Practice Act. Interpreting the amendment as intended to give the general denial the force of a traverse preserves the The court should have instructed the jury in a manner limiting the defendant's prescriptive right, if any, to such portion of the plaintiff's land that had been overflowed by the obstruction in the river, for 15 years or more before the suit was brought, and should not have instructed them in substance that, if the defendant caused the river on its own land to set back upon the land of the plaintiff, and no change was made in the obstruction by the defendant and the damage to the plaintiff was continuous year by year and from time to time, and the obstruction was maintained under a claim of right, openly and notoriously for 15 years, such an obstruction would ripen into an easement and establish the defendant's right to do just what he did do, and the plaintiff could not recover for any damage, not even for 6 years. From the charge given, the jury might well understand that, if the obstruction had been maintained for 15 years without change, the which the obstruction had caused to be overflowed for only 6 years next before the suit was brought. This charge made the easement depend upon the length of time the obstruction, causing the overflow, had existed, and not upon the time the land was burdened by the overflow. The defendant had the right to obstruct the river on its own land, provided it did no injury to others. The maintenance of such an obstruction, alone, though persisted in for the requisite period, would not result in a prescriptive right to overflow the plaintiff's meadow. (110 A.) actually injured by the overflow that the the plaintiff's farm. The ground of the exprescription, if any, began to run. ception was that no [6] Until a right of action accrues prescription begins to run, and no right of action accrues until injury is inflicted. Dutton v. Stoughton, 79 Vt. 361, 65 Atl. 91; Norton v. Valentine, 14 Vt. 239, 39 Am. Dec. 220. The presumption of an easement arises only where the person against whom the right is claimed could have lawfully interrupted or prevented the exercise of the supposed right. Lawrie v. Silsby, 76 Vt. 240, 56 Atl. 1106, 104 Am. St. Rep. 927. The extent to which the land is flooded must be substantially the same during the whole period. 40 Cyc. 677. The easement is measured by the extent to which it was exercised at the beginning of the period of the prescription and has since been maintained. 40 Cyc. 678. To acquire a right by prescription the flowage must be confined to substantially the same land for the full period required to perfect it. Jones on Easements, 643; Bremer v. Ry. Co., 191 N. Y. 333, 84 N. E. 59; Horner v. Stilwell, 35 N. J. Law, 307. The extent of the presumed right upon which the easement rests is measured by the right enjoyed during the whole period. Shrewsbury v. Brown, 25 Vt. 197. [7] The principle which underlies the use of all easements is that the owner thereof cannot materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon. 9 R. C. L. 790, par. 47. This is substantially the rule this court has followed with reference to a prescriptive right of way. In such case the use must be confined substantially to the same track, entering upon and leaving the defendant's land at substantially the same points. Plimpton v. Converse, 44 Vt. 158. The defendant cites several cases to the effect that the use need not be constant in the sense of daily use; that such must necessarily be irregular and dependent upon the season and rainfall. But those cases, though stating the law as applied to the facts in each, are not in point. They refer to the extent of the prescribed and defined use for the entire period, and not to the increased use during the period of prescription. [8] The plaintiff excepted to the exclusion of her offer to show the value of the flooded land before it was overflowed. The purpose of the offer, as stated by the plaintiff, was to recover the total value of the land. It was conceded that the plaintiff had only a life estate in the overflowed land. The offer was properly excluded. A life tenant can recover only for the injury to the life estate. 16 Cyc. 647. [9] The plaintiff excepted to the court's reception of evidence bearing upon the market value of stock-hay in the vicinity of "The question does not bring it within the evidence in the case, and that the witness has shown no information about the Dernier lot, except that he knows of it. It does not qualify him to express any value there." first clause in the ground of his exception is [10, 11] What the plaintiff means by the not clear, and we are unable to see the force of it, and, if it points to any error, it is not sufficiently plain to warrant a reversal of the judgment below, if it were not reversed upon other grounds. If the witness had not shown sufficient information about the Dernier lot at the time the exception was taken, we think he was sufficiently qualified to testify concerning its value during the cross-examination. The exception to the admission of evidence is without merit. It had a bearing upon the defendant's claim that the obstruction made by itself was not the cause of the setback of the water upon the plaintiff's land; that such setback, if any, was caused by sand accumulating in the bed of the river, and was without defendant's fault. For the errors specified, the case must be sent back for a new trial, and the judgment is reversed and cause remanded. (94 Vt. 235) BRITCH v. TOWN OF SHELDON. (Supreme Court of Vermont. Franklin. May 8, 1920.) 1. Negligence 69-Temporary forgetfulness is contributory negligence only where plaintiff failed to act as a prudent man. In personal injury actions, where plaintiff, although knowing of the existence of dangerous conditions, temporarily forgets, then the controlling question as to whether such conduct constitutes contributory negligence is whether a jury would be justified in finding on the evidence that plaintiff was exercising the care of a prudent man in the circumstances, notwithstanding his temporary forgetfulness. 2. Negligence 69-Temporary forgetfulness of known danger must be explained. Where a person is injured because of dangerous conditions, the existence of which was known to him, but which he temporarily forgot, he must show a reasonable cause or explanation of his forgetfulness, apart from mere inatten. tion or lapse of memory. 3. Highways 213(4)- Whether forgetfulness that culvert was being repaired was contributory negligence held for jury. Where plaintiff, knowing that a culvert or small bridge in a highway was being repaired, drove along the road at night in forgetfulness of such fact and was injured, he supposing that warning lights would have been placed upon the |