Brown v. West

• Decision Date: 05 April 1910
• Citation: 76 A. 169,75 N.H. 463
• Parties: BROWN v. WEST et al.
• Court: New Hampshire Supreme Court

76 A. 169

75 N.H. 463

BROWN

v. WEST et al.

Supreme Court of New Hampshire. Rockingham.

April 5, 1910.

Transferred from Superior Court, Rockingham County; Wallace, Judge.

Action by Harold C. Brown against George S. West and another for negligence, in which plaintiff seeks to recover damages for an injury sustained on the night of September 18, 1908, while traveling on a public highway in Chester. A verdict was returned for plaintiff, and the case was transferred to the Supreme Court on defendants' exceptions to the denial of their motions for a nonsuit and for the direction of a verdict in their favor. Exceptions sustained. Judgment for defendants.

The defendants were the selectmen of Chester in 1908. Pursuant to a vote of the town, and in its behalf, they entered into a contract with the state to improve a certain highway in the town, under the provisions of chapter 35, Laws 1905, as amended by chapter 60, Laws 1907. In the execution of the contract and as selectmen of the town, they hired men to do the work of reconstructing the highway, placed one Nowell in charge as superintendent, and drew orders on the town treasurer for their pay. They also worked themselves upon the highway as teamsters, carting grade, stone, and water, and were paid therefor the same as other workmen, receiving nothing in addition. The work of highway improvement consisted of drawing grade, spreading and rolling it down, then drawing on crashed rock of different grades (the finer being placed above the coarser), spreading it, sprinkling it with water, and rolling it. At the time of the accident, the carting of grade had been completed for a distance of about 150 feet in advance of the rock work; but for a space of 12 or 14 feet back from where the grade began, ami the rock work left off, the crushed rock had not been rolled down. At this point the top of the rock was 6 inches or more above the surface of the grade. On the night of the accident the road was left in this condition, without lights to warn travelers, and the plaintiff, while driving over the road, ran into the loose rock, was thrown from his carriage, and sustained the injury for which he seeks to recover. Other facts appear in the opinion.

Ernest L. Guptill and Page & Bartlett, for plaintiff.

Eastman, Scammon & Gardner, for defendants.

BINGHAM, J. If there was evidence from which it could be found that the defendants had the general control and direction of the work of improving or reconstructing the highway, a question not decided, it was vested in them, not as principals, but as agents of the town. As agents they would not be constructively liable in an action of tort to the plaintiff, a stranger, for the negligence of their co-servants or agents. The doctrine of respondeat superior does not apply in such a case. But as individuals, and notwithstanding their agency, they would be liable if they participated in the act occasioning the injury, either by direct personal interference, or by giving directions which would make the act their own, although done by another. Hill v. Caverly, 7 N. H. 215, 218, 219, 26 Am. Dec. 735; Baeheller v. Piukham, 68 Me. 253; Bowden v. Derby, 97 Me. 536, 55 Atl. 417, 63 L. R. A. 223, 94 Am. St. Rep. 516; Brown v. Lent, 20 Vt. 529, 531; Nowell v....