Burke v. Boston & M. R. R.

• Decision Date: 01 June 1926
• Citation: 134 A. 574
• Parties: BURKE v. BOSTON & M. R. R. CHING v. SAME. SANDERS v. SAME.
• Court: New Hampshire Supreme Court

134 A. 574

BURKE

v. BOSTON & M. R. R.

CHING

v. SAME.

SANDERS

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

June 1, 1926.

On Rehearing, Oct. 5, 1926.

Exceptions from Superior Court, Hillsborough County; Sawyer, Judge.

Three actions by Patrick, F. Burke, administrator, Anna M. Ching, administratrix, and Loren A. Sanders, administrator, respectively, all against the Boston & Maine Railroad. On exceptions after verdicts for plaintiffs. New trials.

Three actions of case, to recover damage for the alleged negligent killing of the plaintiffs' intestates on April 11, 1922. The cases were tried together by jury, with verdicts for the plaintiffs.

The accident in question was caused by the giving way of the defendant's roadbed, on the shore of Lake Sunapee. There was a fill at this point, and surface water had collected in the ditch at its upper side, thereby either softening or washing out the fill. Up to the fall before the accident, the highway parallel with and above the defendant's right of way had diverted the surface water. Changes in the highway made at that time resulted in turning the water onto the defendant's premises. There was evidence that, if the defendant ought to have anticipated the presence of the water in the ditch, it should have taken precautions either by opening the lower end of the ditch or building a culvert, or by patrolling the right of way.

The defendant's motions for nonsuits and for directed verdicts were denied by Sawyer, J., subject to exceptions. There were also exceptions to instructions to the jury given and refused. Further facts are stated in the opinion.

Doyle & Dpyle, of Nashua, John B. Cavanaugh, and Cyprien J. Belanger, both of Manchester, and Robert W. Upton and Nathaniel E. Martin, both of Concord, for plaintiffs.

Demond, Woodworth, Sulloway & Rogers, of Concord, and Warren, Howe & Wilson, of Manchester (Jonathan Piper, of Concord, orally), for defendant.

PEASLEE, C. J. I. The principal question in these cases is whether the defendant owed to its employees any duty in respect to the presence of surface water that came upon its premises shortly before the accident. The roadbed at this point is located at the foot of a considerable watershed, and, but for the artificial obstruction offered by an adjacent highway, water might be expected to come down as it did on the night in question. In the years preceding the accident, the highway had diverted the water, partly by a ditch at its upper side and partly by reason of the middle of the highway being low and acting as an added channel.

In the fall before the accident the highway had been rebuilt, under the direction of state engineers. The surface had been left rounded sufficiently to throw off water, and a ditch had been constructed at the upper side, designed to conduct the surface water coming from the hills above. At about the place of the accident a spur of the hill had been cut to widen the highway. In doing this, the bank had been left so steep that it would be evident to any one familiar with such work that the earth and stones would fall under the effect of heavy rains or spring thawing and obstruct the ditch. In that event the water would flow over the road and onto the defendant's premises. An occurrence of this sort caused the weakening of the roadbed, and the accident ensued. There was no evidence that the defendant knew that the changes in the highway would affect the flow of the surface water.

The question, what obligation the defendant was under to anticipate and provide against such an accident, involves the law governing the rights and duties of adjoining owners as to surface water which in a state of nature would run over the land of one onto that of the other. While in many jurisdictions the law has been declared to be that each owner has the absolute right to appropriate surface water, or to stop its flow onto his land (27 R. C. L. 1138 et seq.), the rule in this jurisdiction is that the rights of the parties are governed by the doctrine of reasonable use. Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 196; Rindge v. Sargent, 64 N. H. 294, 9 A. 723. The question raised is one of fact, even in a case where the claimed right consists of discharging water from a culvert onto the adjoining premises. Franklin v. Durgee, 71 N. H. 186, 51 A. 911, 58 L. R. A. 112.

Upon this motion for a directed verdict, it must be assumed that all material questions touching the rights and obligations of the town and the defendant as to this surface water were resolved in favor of the plaintiffs, so far as there is any evidence to justify such findings.

It appeared that the town's highway construction had taken care of the surface water for a long series of years, and it is urged that the defendant had a right to act upon the supposition that this protection would be continued. But no such conclusion can be drawn as matter of law. It may be that as a matter of fact it would or would not be unreasonable for the town to change that situation. It must be assumed here that it would not be, and that therefore the defendant cannot justify its conduct under a claim of right to a continuance of former conditions.

So also as to the new construction, it might be found that it was not an unreasonable one so far as the defendant was concerned. It could be found that, even with the highway ditch obstructed, no more water came onto the defendant's premises than would have come in a state of nature. The fact that the water came down over a space only a few feet wide does not appear to have had any significance in the causation of the trouble with the roadbed. So far as appears, the same result would have followed if the water had flowed down over the land in its natural state, or over a stretch of road that had ponded some of the water behind it. There is no conclusive evidence that the town turned any water into the railroad ditch, save what would have found its way there in the absence of a highway.

These facts could be found from the evidence, and, being found, would be used in ascertaining the remaining facts. In the further consideration of the case their existence as facts is assumed, except when otherwise stated.

If the water that came into the ditch alongside the track and caused the trouble was the surface water that would naturally have come there had there been no highway, the defendant might be found to be in fault in not providing protection against its effect. If the town had abandoned the protective features of the old highway, it would not necessarily follow that it violated any right of the defendant. The defendant had no absolute right to rest upon the assumption that such protection would be continued. It knew changes were being made in the highway, and was therefore put upon inquiry; Conceding that it might assume that the changes would be made in a lawful manner and with due care, the defendant would not be excused from an investigation of the new situation, because an abandonment of the protective feature of the old road could be found not to be in excess of the town's rights. Flanders v. Franklin, 70 N. H. 168, 47 A. 88. If it was not in excess of the town's rights, it was not an invasion of the defendant's rights. Not being an invasion of the defendant's rights, the defendant could not, as matter of law, rely upon the assumption that such course would not be pursued.

It is no answer for the defendant to say that it relied upon the competency of the state engineers and the faithfulness of the town workmen. If it could be found that a reasonable man might have assumed that the town would not change the essential features of the situation without notice to the defendant, and that therefore the defendant might reasonably rest upon that kind of assurance of safety, it is also true that it could well be found that a reasonable man, having a duty to protect the safety of the roadbed, would not indulge in that sort of reliance, when he knew that the gratuitous protectors of his premises were making changes on their premises which might result in the abandonment of the protection.

But it is said that, if the defendant could be held accountable for knowledge concerning the adequacy of the highway to take care of the surface water when running in its natural way, it had no duty to look out for the water after the town had collected it into a defined stream; that the town could not, as the possessor of an upper estate, lawfully turn such a stream upon a lower proprietor, and therefore the defendant had no duty to anticipate that such action might be taken. It may be that the town would not exceed its right if it turned the water onto the defendaut's premises in a stream. The question is to be settled by the application of the doctrine of reasonable use. Franklin v. Durgee, 71 N. H. 186, 51 A. 911, 58 L. R. A. 112. But, if it be assumed that what the town did invaded the defendant's rights by turning a stream upon the right of way, the issue here presented is not disposed of.

The question here is not one of duty to anticipate the wrong of another, but of reasonable assurance that right has been done— right, that is, as between the defendant and its servants, not merely as between the defendant and the town. It does not concern the defendant's supposed duty to know that a wrong has been committed against it, but rather its duty to be reasonably assured that right has been done as concerning its servants. If no harm could have come but for the intentional fault of the town, the ground suggested might be tenable, but when, as here, the defendant is depending upon action by the town in a positive way (i. e. as warding off a danger that otherwise would be present), the defendant must take reasonable care to ascertain what that conduct is. Elliott v. Douglas, SO N. H. 418, 117 A. 593. Relying upon the town for a partial performance of what was necessary to make the work place safe, the defendant is charged with some...