Stark v. Lancaster

• Decision Date: 22 March 1876
• Citation: 57 N.H. 88
• Parties: Stark v. Lancaster.
• Court: New Hampshire Supreme Court

57 N.H. 88

Stark v. Lancaster.

Supreme Court of New Hampshire

March 22, 1876

Highways---Evidence.

If a town permits a turn-out to exist from the travelled part of its highway to a private way, over adjoining land, with all the characteristic marks of a highway, it will be bound to keep such part of the turn-out as is within the laid out limits of the highway in suitable repair for the travel usually passing over it.

Whether or not such turn-out was sufficient, whether its defective condition was the proximate cause of an accident to a team and whether the driver was in the use of sufficient care, are all question for the jury; and the evidence tending to show the condition of the highway, and that the accident commenced at the point where the defect was alleged to have existed although the injury was received off the highway, the court cannot say, as matter of law, that there was nothing for the jury to consider

FROM COÖS CIRCUIT COURT

CASE for damages by reason of injuries to the plaintiff's horse and wagon on a highway. The declaration contains two counts,---the first alleging, generally, that the highway was obstructed, defective, insufficient, and in want of repair by reason whereof the damage was done; the second alleging that the highway was "out of repair, defective, and unsafe, in this, to wit, that where the said highway passes the White Mountains (N. H.) Railroad grounds and depots, the turn-out or pass leading from the travelled part of said highway to said grounds and depots was obstructed, insufficient, defective, and in want of repair." It appeared in evidence that there were running parallel through the village of Lancaster, nearly north and south, two streets---Main and Summer streets. The defendants laid out the highway in question, called Railroad street, the same running nearly easterly and westerly from a point on Main street to a point on Summer street, a distance of about one hundred rods, and three rods in width, on November 16, 1870. The road was in sufficient repair to accommodate the travel upon it between Main and Summer streets. The road was laid out and built before the railroad depot was constructed. The railroad was constructed and opened for use about November 1, 1870. About half way between Main and Summer streets the railroad had a piece of land, for depot purposes and for its road bed, ten rods wide. Its track passed through the same, north and south, one hundred and eighteen feet from the westerly side thereof. Railroad street crossed the railroad at right angles. The freight and passenger depots were in the same building, and located on the westerly side of the track, about one hundred and forty-five feet northerly of the centre of Railroad street. The

land between Main and Summer streets, including the railroad land, is low and level, and the defendants had so constructed Railroad street as to leave ditches on either side, the same being, on an average, about two feet lower than the centre of the road, and about twenty inches lower than the unwrought surface on the outside. This was the only highway crossing the depot or grounds, and there was a large amount of travel upon it. On the northerly side of Railroad street, at the point where it intersected the railroad track, there was a turn-out or pass leading northerly over the ditch, along the westerly side of the railroad track to the depot. The turn-out or pass from the central travelled part of the highway, within the limits of the same, to the depot grounds, was made by placing at the bottom of the ditch a plank box culvert, covering it with dirt, and filling up the sides so as to make it level with the wrought and travelled portion of the highway and depot grounds on either side. This culvert and turn-out were not put in or built by the town or by its authority. The distance from the iron on the side-track westerly, to the westerly end of the culvert, was eighteen feet, and from the end of the railroad ties to the same point was sixteen feet, at which point there was an off-set to the bottom of the ditch of two feet and seven inches. The rest of the ditch westerly across the railroad land was uncovered, and no provision had been made for crossing it. The culvert was seven feet inside from the northerly line of the highway, and as many feet northerly of the travelled path thereof. Prior to and on July 24, 1871, the travel upon the highway to and from the depot and depot grounds passed from and came to the highway over the culvert and turn-out. The turn-out had every appearance of being made for the public to use in going to and from the depot, and the wheel tracks, and all the other indications usually made by public travel, were plainly visible on the same from the central travelled part of the highway. There were no railings or guards to keep people from going to the turn-out, nor to keep them from getting on to the railroad track, or into the ditch at the off-set from the turn-out. At a distance of fifty-five feet south of the culvert there was a switch, at which point the side track began, and ran northerly past the depot. The westerly rail of the main track was within the rails of the side track at a point easterly of the culvert. There was also another side track extending northerly beyond the depot on the east side of the main track. The tracks from the switch northerly were used for making up trains, and doing the ordinary yard work of a railroad at stations situated at the terminus of a road, as this was. On July 24, 1871, Thomas Tyrie, then residing at Groveton, N. H., hired the plaintiff's horse and wagon for bringing his wife to said depot, that she might take the morning train of cars for Boston. He went to the depot, passing over the highway and turn-out, following the common course of travel, where he arrived before the train left. He hitched his horse on the westerly side of the depot, and waited till his wife left on the train, when he took his horse and wagon and started to go on to Railroad street in the way he came. When he got on to the turn-out by the side of the

track, about thirty feet north of the culvert, an engine, with a freight car attached, standing some distance south of the switch on the main track, and which not being in motion, and emitting no smoke, steam, or noise, had been unobserved by him, suddenly started and came rapidly up the track towards him. The horse passed along and was just ready to turn into the central travelled portion of the highway, having her hind feet nearly opposite the offset at the westerly end of the culvert, when she became so frightened at the engine and car that she refused to go forward, began to sway right and left as if to dodge the engine coming towards her, and being reined to prevent her turning to the right into the ditch at the end of the culvert, or to the left on to the track in front of the engine, she commenced running back, cramping the wagon to the right from the track, till she had got about thirty-five feet north of the culvert, when she had so turned around that her head was facing the railroad track. At that instant the engine passed on the main track, and she gave a lurch and threw herself upon the ground, her fore feet passing over the outer rail of the side track. The freight car having been unshackled and switched on to the side track, came immediately along and cut off her forelegs. The wagonshafts were broken, and the wagon otherwise injured. The mare, being made worthless, was killed. The defendants soon after made a box culvert, and covered the same with dirt from the westerly end of the culvert to the westerly line of the railroad land, making the surface of the whole similar to the surface of the culvert. The plaintiff having rested his case, the defendants moved for a nonsuit. It being agreed by the defendants, that, if their motion should be overruled by the full bench, judgment should be rendered for the plaintiff for $143.19 damages, and costs of court, the court pro forma ordered a nonsuit. The plaintiff excepted.

Case reserved for the late supreme court by FOSTER, J.

Crawford and G. A. Bingham, for the plaintiff. Burns & Ray, for the defendants

CUSHING C. J

The only question to be decided in this case is, whether the nonsuit was rightly ordered,---in other words, whether there was anything for the jury to consider.

The first count alleges generally that the highway was defective and insufficient, &c. The second count alleges that the culvert was insufficient, and in each count it is alleged that the accident happened by reason of such insufficiency.

It is true that the culvert was not within the travelled part of the highway proper, but it was a part of a turn-out from the highway connecting with a pass from the highway to the depot. This turn-out had all the appearance of a regular highway, and a great amount of travel is said to have passed over it.

I think, as matter of law, although I have not noticed any case

exactly in point, that if the town permitted such a turn-out to exist from the highway to the way over the depot grounds, it was bound to keep in repair so much of such turn-out as was within the limits of the highway as laid out. Coggswell v. Lexington, 4 Cush. 307, seems to be, in principle, an authority for this view.

Whether the town would have a right to prevent travel from its highway to the depot ground, or from the depot ground to the highway, it is not now necessary to inquire. The town did permit it. Travellers, finding the road thus apparently travelled, would have a right to travel there, and to rely upon finding the road in suitable condition.

This being so, the questions whether the culvert was wide enough or otherwise sufficient, whether the accident would have been avoided had the culvert...