Noyes v. Town of Boscawen

Citation64 N.H. 361,10 A. 690
PartiesNOYES v. TOWN OF BOSCAWEN.
Decision Date15 July 1887
CourtSupreme Court of New Hampshire

Reserved case from Merrimack county; Carpenter, Judge, presiding.

Case, under the statute, for an injury received from a defective highway. Mrs. Noyes, the plaintiff, about 9 o'clock in the evening of October 10, 1885, was riding with one Dearborn, who drove the horse, when the right wheel of the carriage struck a stone, the defect complained of, and the plaintiff was thrown out and broke her arm.

The plaintiff was a witness, and was asked whether she considered Dearborn a careful driver. On the defendant's objection, the question was excluded, subject to exception. The plaintiff requested the court to instruct the jury that Dearborn's negligence could not affect the plaintiff's right to recover unless he was her agent, and either under her control, or controlled her personal conduct. The court denied this request, subject to exception, and instructed the jury that if, at the time and place of the accident, the highway was not reasonably safe and suitable for the travel thereon, and both the plaintiff and Dearborn exercised ordinary care, the plaintiff might recover; that if a person of average prudence, placed in exactly the situation in which Dearborn and the plaintiff were immediately before and at the time of the accident, possessed of the same knowledge and means of knowledge which they had of all the surrounding circumstances, would or might have done as they did, they exercised ordinary care and were free from fault; that if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the verdict should be for the defendant. Verdict for defendant.

D. F. Dudley, for plaintiff.

On the question whether the plaintiff was in the exercise of ordinary care, Dearborn's character as a driver was competent. Shear. & R. Neg. § 46, note 2; Bigelow, Torts, 729. It has been held that defects in a wagon or horse unknown to the plaintiff, and which he would not be expected to discover by the exercise of ordinary care, did not prevent a recovery, although they contributed to the injury. Winship v. Enfield, 42 N. H. 197; Clark v. Barrington, 41 N. H. 44. The plaintiff was not the owner or bailee of the team, and had no legal right or actual power to drive or direct the driver. Nor does it appear that there was any circumstance to indicate danger to her so that she was in fault for proceeding. Robinson v. Railroad, 23 Amer. Rep. 1; Knapp v. Dagg, 18 How. Pr. 165; Metcalf v. Baker, 11 Abb. Pr. (N. S.) 431; Bennett v. Railroad Co., 36 N. J. Law, 225; Plummer v. Ossipee, 59 N. H. 55. If a person invited me to ride in his carriage, driven by his servant, I might have a right of action against the master if injured by the negligent act of the servant, but not if, by the mere fact of riding with that servant, he became mine. Cases above.

W. G. Buxton, for defendant.

If either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the plaintiff cannot recover. Thorogood v. Bryan, 8 C. B. 115; Cattin v. Hills, Id. 123; Armstrong v. Railway Co., L. B. 10 Exch. 47; Lockhart v. Lichtenthaler, 46 Pa. St. 151; Puterbaugh v Reasor, 9 Ohio St. 484; Allyn v. Railroad Co, 105 Mass. 77; Smith v. Smith, 2 Pick. 621; Shear. & R. Neg. 475. After commenting on some of above cases, counsel cited Norris v. Litchfield, 35 N. H. 276; Cummings v. Center Harbor, 57 N. H. 17; Stark v. Lancaster, Id. 88.

Chase & Streeter, on same side.

The traveler and the town are both in duty bound to exercise due care, and constant care. The town is bound for the whole distance of the way, and at all times, to provide a legally sufficient highway, and the traveler is bound to exercise constant care the whole of the journey. Their duties are correlative. Has the traveler, then, the right to intrust the exercise of this care to another, (the driver,) and still not suffer detriment from the other's carelessness? Can she deprive the town of the right to exact of the traveler a degree of care correlative with the degree of care the law exacts of it? Has she the right to deprive herself of the power to exercise care, and still exact care of the town? The plaintiff, having delegated the duty of care which the law requires of her to another, (the driver,) should be affected with all the legal consequences which a neglect of duty would attach to her if she did the negligent act herself. If it is said she performed the act of care required of her when she used care and prudence in selecting a driver, the reply is that a single act of care is not enough; the town is entitled to the benefit of the traveler's constant care.

CLARK, J. The case raises the question whether a person who is guilty of no personal negligence, receiving an injury while riding in the carriage of another, caused by a defect in the highway, and the carelessness of the driver, over whom he has no control, is prevented by the negligence of the driver from recovering against the town; whether the negligence of the driver of a carriage is a defense to an action brought by a passenger, personally free from fault, for the recovery of damages for all injury happening from a defective highway. Upon the question whether the negligence of the driver or manager of a carriage is imputable to a passenger the authorities are conflicting.

In the leading English case of Thorogood v. Bryan, 8 C. B. 115, a passenger in alighting from an omnibus was thrown down and injured by the negligent management of another omnibus, and it was held that an action could not be maintained against the owner of the latter if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury. Although this case has been criticised by English judges, we are not aware that it has been overruled in the English courts; and in Armstrong v. Railway Co., L. R. 10 Exch. 47, decided in 1875, it was followed and approved. In the latter case, the plaintiff was injured by a collision of a train of the London & Northwestern Railway Company, on which he was a passenger, with some coal cars of the defendant company. The jury found that the collision was caused by the joint negligence of the London & Northwestern Company and tilt defendant; and it was held that the plaintiff was so far identified with the London & Northwestern Company that he could not recover. 12 Moak, Eng. R. 508.

In this country, the doctrine of Thorogood v. Bryan has been approved and followed in some states, and in others it has been questioned and its soundness denied, and the weight of authority seems to be against it. Cases supporting it are found in Wisconsin, (Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Wis. 513;) in Pennsylvania, (Lockhart v. Lichtenthaler, 46 Pa. St. 151; Forks Toionship v. King, 84 Pa. St. 230;) in Iowa, (Payne v. Railroad Co., 39 Iowa, 523;) and in Vermont, (Carlisle v. Sheldon, 38 Vt. 440.) Two Massachusetts cases are cited as supporting the doctrine: Smith v. Smith, 2 Pick. 621, and Allyn v. Railroad Co., 105 Mass. 77. But all that was decided in Smith v. Smith was that one who is injured by an obstruction unlawfully placed in a highway cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided; and Allyn v. Railroad Co. merely decides that there was no evidence for the jury that the plaintiff was in the exercise of due care. The question does not arise in highway cases in Massachusetts and Maine, as it is there held that a town is not liable for an injury caused by a defect of the highway and the negligent act of a third party combined; the construction given to the statute being that no action can be maintained unless the injury arises wholly from the defect. Rowell v. Lowell, 7 Gray, 100; Shepherd v. Chelsea, 4 Allen, 113; Moulton v. Sanford, 51 Me. 127; Perkins v. Inhabitants of Fayette, 68 Me. 152.

The doctrine of Thorogood v. Bryan is denied in New York, (Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228;) in New Jersey, (Bennett v. Railroad Co., 36 N. J. Law, 225; Railroad v. Steinbrenner, 47 N. J. Law, 161, 171;) in Ohio, (Transfer Co. v. Kelly, 36 Ohio St. 86, 91;) in Illinois, (Railway Co. v. Shacklet, 105 Ill. 364;) in Kentucky, Turnpike Co. v. Stewart, 2 Mete. Ky. 119; Railroad Co. v. Case's Adm'r, Bush, 728;) in California, (Tompkins v. Railroad Co., 4 Pac. Rep. 1165;) and in the supreme court of the United States in the recent case of Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391.

The rule that the negligence of the driver or manager of a vehicle is to be treated as the negligence of a passenger, in an action by the passenger against a third party, is put upon the ground that the passenger, in selecting the conveyance, has placed himself in the care of the driver, and hence must be taken to be in the same position; and the driver, as to third persons, is to be so far regarded as the agent or servant of the passenger as to make the latter chargeable with the driver's negligence, and hence not entitled to recover, although he may have been free from fault himself.

In Carlisle v. Sheldon, 38 Vt. 440, which was an action for injury to a wife caused by a defect in the highway while riding in a carriage driven by her husband, the doctrine is stated by Kellogg, J., as follows: "The question is whether a lack of ordinary care and prudence on the part of the husband is in law, under the circumstances of the case, a bar to a recovery for an injury to the wife, when she herself was in the exercise of that degree of care, and was in no fault whatever. The wife was riding in a wagon drawn by a horse driven by her husband. She was a passenger over the highway, and she stands in no different...

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