Ahern v. City of Concord

• Decision Date: 02 February 1926
• Parties: AHERN v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

132 A. 570

AHERN

v. CITY OF CONCORD.

Supreme Court of New Hampshire. Merrimack.

Feb. 2, 1926.

Transferred from Superior Court, Merrimack County; Burque, Judge.

Action by Lucille M. Ahern against the City of Concord. Verdict for plaintiff. Case transferred on defendant's exceptions. Exceptions overruled.

Case under Laws 1893, c. 59. While waiting on a highway for an electric car, the plaintiff leaned against a defective bridge railing, which broke, and in consequence she fell over an embankment and was hurt. Trial by jury and verdict for plaintiff. Transferred on exceptions to the denial of a motion for a nonsuit, to the admission of evidence, and to the charge.

J. Edward Flynn and Robert W. Upton, both of Concord, for plaintiff.

Elwin L. Page, of Concord, for defendant.

ALLEN, J. The motion for a nonsuit was properly denied.

The evidence was conclusive to show that the plaintiff was a highway traveler when injured. Though not engaged in the actual movement of travel, she was doing an incidental act of travel of a reasonable nature. Waiting for the electric car was neither a departure nor diversion from her journey, and the manner of her waiting might well be found to be natural and proper. Such use of the highway did not suspend or defeat her character as a traveler. Hardy v. Keene, 52 N. H. 370; Varney v. Manchester 58 N. H. 430, 40 Am. Rep. 592; Lydston v. Light & Power Co., 75 N. H. 23, 70 A. 385, 21 Ann. Cas. 1236; Thompson v. Electric Light & Power Co., 77 N. H. 92, 88 A. 216; Manning v. Manchester St. Railway, 80 N. H. 404, 114 A. 386; Langevin v. Twin State Gas & Electric Co., 81 N. H. 446, 128 A. 681.

The argument that, because the cases since Varney v. Manchester, supra, are not highway liability suits, therefore their reasoning is not applicable here, cannot be adopted. The question being what constitutes highway travel and the exercise of a traveler's rights, it makes no difference what may be the nature of the case in which the question arises. The question now being considered is not whether a liability has been imposed upon the city, but merely whether the plaintiff was a highway traveler. She is to be considered as such. Being a highway traveler, she is entitled to whatever protection the statute gives to such persons. Hardy v. Keene, supra; Varney v. Manchester, supra.

The defendant has cited Orcutt v. Bridge Co., 53 Me. 505, and Stickney v. City of Salem, 3 Allen (Mass.) 374, as authorities in its favor. The former case, if not to be distinguished as not being under the highway liability statute, appears to be in conflict with Varney v. Manchester, supra, which holds the question of a traveler's use of the highway to be one of fact, and expresses disapproval of McCarthy v. City of Portland, 67 Me. 167, 24 Am. Rep. 23, in which horse racing on a highway was held outside of the protection of the statute. In the earlier case of Stinson v. City of Gardiner, 42 Me. 248, 66 Am. Dec. 281, it was held to be for the jury to say whether the plaintiff was using the highway in travel, in leaning against a railing, or as a playground and running against the railing. The result there appears to be squarely in accordance with this case, and the Orcutt Case is at best of doubtful authority for the defendant.

In Stickney v. City of Salem, it was held that leaning against a rail was "improper and unauthorized." The plaintiff here was acting rightfully, and the denial of relief there makes another conflict with Varney v. Manchester. Other Massachusetts cases appear to support the views here advanced.

In Britton v. Inhabitants of Cummington, 107 Mass. 347, the plaintiff stopped his team at the side of an unrailed embankment to pick berries. While so engaged, the horses were disturbed, and the carriage went over the bank. No question was raised of the plaintiff's right to recover as not being engaged in an act of travel. In Gulline v. Lowell, 144 Mass. 491, 11 N. E. 723, 59 Am. Rep. 102, it was ruled to be "a natural and ordinary incident of traveling" for a child of seven, while walking on a sidewalk, to step aside and clasp a post near a hole he fell into. And in Greenwood v. Callahan, 111 Mass. 298, it is said: "Highways are made, not merely for travel, but for such business as may be connected with it." These cases, in their recognition of the traveler's right to engage in reasonably incidental acts of travel, at least imply, if they do not give, protection in the exercise of the right.

But it is said that the statute requiring the railing of dangerous embankments...