Connor v. City of Manchester

• Citation: 60 A. 436,73 N.H. 233
• Parties: CONNOR v. CITY OF MANCHESTER.
• Decision Date: 07 March 1905
• Court: Supreme Court of New Hampshire

60 A. 436

73 N.H. 233

CONNOR

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

March 7, 1905.

Transferred from Superior Court; Peaslee, Judge.

Action on the case for negligence by John J. Connor, as administrator, etc., against the city of Manchester. Defendants' motion for nonsuit was granted subject to exception, and the case was transferred to the Supreme Court. Exceptions overruled.

The plaintiff offered to prove that the decedent was employed by the street and park commissioners of the city of Manchester, through their superintendent, to drive a horse hitched to a cart used in removing dirt, ashes, and rubbish from the streets of the city and from receptacles placed on or near the streets by abutters, and that while so employed he was run over and killed by reason of the unsafe character of the horse.

James A. Broderick, for plaintiff. George A. Wagner and Burnham, Brown, Jones & Warren, for defendants.

CHASE, J. The case does not state any facts tending to prove that special authority was delegated by the defendants to their street and park commissioners with reference to cleaning streets. Whatever authority the commissioners had must have arisen from their official position. By the act creating the office (Laws 1893, p. 252, c. 204) the commissioners were given full charge and control of building, constructing, repairing, and maintaining highways in the city, and for that purpose were granted all the powers then vested in the board of mayor and aldermen, the city councils, and the highway surveyors of the various districts of the city. They were authorized to appoint subordinate officers and agents, and to make rules for their own government, the conduct of their subordinates, and the control of the horses, wagons, tools, etc., provided by the city councils for their uses. Section 1. In repairing and maintaining highways the commissioners, like highway surveyors and highway agents, act as public officers, and not as agents of the city. Consequently, the city does not owe the persons employed by the commissioners in such service the master's duty of exercising ordinary care that the instrumentalities furnished the servant shall be reasonably suitable for the work assigned to him. O'Brien v. Derry, 73 N. H. —, 60 Atl. 843. But the plaintiff says that cleaning streets is not "repairing" or "maintaining" them, within the meaning of this statute. If this were so, his standing in this case would not be improved, since he shows no relationship...