Clark v. Town of Hampton

• Decision Date: 05 March 1929
• Citation: 145 A. 265
• Parties: CLARK v. TOWN OF HAMPTON (two cases).
• Court: New Hampshire Supreme Court

145 A. 265

CLARK

v. TOWN OF HAMPTON (two cases).

Supreme Court of New Hampshire. Rockingham.

March 5, 1929.

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

Actions by William H. Clark and by Clifford R. Clark, per pro. ami, against the Town of Hampton. Transferred on defendant's exceptions. New trial.

Two actions of case under the statute of highways to recover for injuries suffered by the plaintiff in the second case, who is the minor son of the first plaintiff. Trial by jury, with verdicts for the plaintiffs. The accident happened by reason of the collision of an automobile (in which Clifford was riding) with a tree near a highway in the defendant town. The car was operated by one Swanton, who was a half owner thereof. It was a disputed question whether Clifford had a possessory interest in the other half.

Two defects were complained of. There was a depression, variously estimated at from three to six inches deep, in the fill between supporting lines of piles which made the abutment to a bridge over Taylor's river. The depression was at the edge of the planking and in the left wheel track, as the parties were traveling. It was claimed that in going through this the car was jolted and thrown sidewise, so that the wheels became impeded by loose dirt in the road beyond, and that because of this the car got out of control and ran off the unrailed embankment. Further facts appear in the opinion.

The defendant excepted to the denial of its motion for directed verdicts, and to the refusal to instruct the jury that, if the occupants of the car were in joint possession and control of the car, or were using it in a joint enterprise, or as their joint property, the plaintiffs were chargeable with the driver's negligence. The jury were instructed that negligence of the driver was not a defense, unless it was the sole cause of the accident.

William H. Sleeper, of Exeter, for plaintiffs.

George R. Scammon, of Exeter, Ernest L. Guptill and John L. Mitchell, both of Portsmouth, and Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

PEASLEE, C. J. These suits are brought to recover for injuries suffered by the plaintiff in interest in the second action in an accident which occurred on or near a highway in Hampton. For convenience he is herein spoken of as the plaintiff. The defendant moved for directed verdicts, and claims that it could not be found that there was a defective bridge or a dangerous embankment requiring a railing; that, if such defects did exist, neither was any part of the cause of the accident; and that the plaintiff was not a traveler, within the meaning of the statute of highways, because the car in which he was riding was not properly registered.

The position that the fault was not in the bridge because it was in the fill between the piling leading to the span, and was a surface defect only, is not well taken. The case on this point is in all respects comparable with Wilson v. Barnstead, 74 N. H. 78, 65 A. 298, and is governed by that decision.

The embankment was five feet high and as steep as dirt would remain. Its top was well within the highway limits and near the customary line of travel. The question whether such an embankment ought to be railed is plainly one of fact. Seeton v. Dunbarton, 72 N. H. 269, 56 A. 197; Parker v. New Boston, 79 N. H. 54, 104 A. 345.

It is claimed that the circumstance of the condition of the road, caused by loose dirt left there by the town authorities, cannot be considered upon the issue of duty to rail the embankment. All existing conditions, known to the town, are to be taken into account. Parker v. New Boston, 79 N. H. 54, 104 A. 345. In that case the fact that vegetation concealed the existence of an embankment was held to be pertinent to the issue of need for a railing. In the present case, the town knew the loose dirt was there and elected to let it remain. If the condition of the roadbed was only temporary, that fact would also enter into the problem to be solved. It might be reasonable to demand a railing to protect against a permanent condition, but unreasonable to require it if the danger were transient. The distinction can be made because of the difference in the ratio of cost to result. Hussey v. Railroad, 82 N. H. 236, 242, 133 A. 9, and cases cited. It might be unreasonable to demand the expenditure of $1,000 as a protection against one chance of an accident, but reasonable to require it as a prevention against thousands of chances. This follows from the orthodox rule (Clark v. Barrington, 41 N. H. 44) that the amount of travel is to be considered in determining whether the way is in proper repair. The danger encountered by a single traveler is the same in either case. But the duty of protection arises only when there is sufficient travel to make it reasonably necessary.

There was sufficient evidence to go to the jury upon the issue of the existence of each of the defects alleged by the plaintiff. This brings us to the next defense—that neither defect was causal. It could be found that the depression at the bridge gave the car a jolt, which threw it sidewise, thereby causing it to run in the soft dirt, where its course could not be controlled by the driver, and that because of this it ran down over the embankment and came into collision with a tree. It is true that other inferences could be drawn from the evidence, which would show that the defect was not causal. It is hardly necessary to add that this latter feature of the case is unimportant here.

As to the embankment, it does not conclusively appear that the defect, if one be assumed to exist, had any part in causing the accident. It must be shown that because of the unguarded embankment an accident happened. If the mishap would have occurred if there had been no declivity, the defect was not causal. Upon the evidence as it now stands it could be found that such a situation existed. There was testimony that the car safely negotiated the descent. that its course was not altered thereby, and that, after it had reached the lower level in safety, it ran into a tree standing upon privately owned ground. The statute does not require a railing to prevent the traveler from straying from the highway onto other land, where he may be injured by existing conditions. If the situation should be found to be that just described, liability could not be predicated upon lack of a railing. There was, however, other testimony that in going over the embankment the course of the car was changed so that it ran into the tree. This was evidence of causation, sufficient to avoid the conclusion above stated.

It is further urged that no railing that an ordinary man would have erected would have prevented the accident to the plaintiff. It is argued that of necessity the car would have gone through the railing, or would have received an impact of like force to that encountered at the tree beyond. Whether such result would have happened, or whether the glancing nature of the contact would have probably saved serious consequences to the occupants of the car, were questions for the jury. Pierce v. Railroad (N. H.) 143 A. 903; Kelsea v. Stratford, 80 N. H. 148, 118 A. 9.

The position is taken that there would have been no accident, but for the loose dirt in the highway, and that therefore the unrailed embankment was not a cause for which the town was liable. If a railing was reasonably required, there is liability, although the dirt may have been a contributing cause to the accident. The existence of such causes, for which neither party is legally responsible, does not relieve the town. Miner v. Franklin, 78 N. H. 240, 99 A. 647; Hendry v. North Hampton, 72 N. H. 351, 56 A. 922, 64 L. R. A. 70, 101 Am. St. Rep. 681; Clark v. Barrington, 41 N. H. 44; Boynton v. Somersworth, 58 N. H. 321, and cases cited.

The defendant urges also that, in order for a plaintiff to recover because of lack of a railing, his deviation from the road must have resulted from the cause which created the necessity for a guard; that, if going off the road resulted from another cause, the lack of protection is not a fault of which he can complain; that as to him there is no breach of duty. If it be granted that the legal position thus taken is sound, it does not help the defendant. Conceding that the loose dirt was a cause for the plaintiff's going over the embankment, it was not a cause independent of the duty to erect a railing. If a railing was required for other reasons, much more was it needed when this condition of the roadbed was added to the circumstances to be considered by the town. "* * * Duty to guard against a traveler going over an unrailed or insufficiently railed embankment is imposed, and includes the exercise of reasonable foresight as to probable causes for such a fall." Ahern v. Concord, 82 N. H. 246, 248, 132 A. 570, 571.

When the car was registered, it was owned by Swanton and one Lee. It was registered in Lee's name, as though he were sole owner. It is claimed that this did not comply with the statute, which required registration in the name of the owner, defined "owner" to mean any person holding title, etc., and provided that "person" includes all aggregations of individuals who own or control the vehicle. Laws 1921, c. 119, § 1.

Because of this defect in registration, it is said that the operation of the car upon the highways was illegal and that therefore neither the operator nor his passenger can recover under the statute of highways. If it be assumed that this was to be deemed an unregistered car, because of the very specific definitions in the statute (see Harlow v. Sinman, 241 Mass. 462, 135 N. E. 553), the question argued is presented for decision. Authorities are not lacking to sustain the position that an unregistered car is not lawfully in the highway. Statutes couched in more or less similar terms have been given that effect. McCarthy v. Leeds, 115 Me. 134, 98 A....