Cozzi v. Hooksett

• Decision Date: 06 January 1931
• Citation: 153 A. 317
• Parties: COZZI v. HOOKSETT (three cases).
• Court: New Hampshire Supreme Court

153 A. 317

COZZI

v. HOOKSETT (three cases).

Supreme Court of New Hampshire. Merrimack.

Jan. 6, 1931.

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

Actions by John Cozzi, by his next friend, by Vincent Cozzi, and by Sylvia Cozzi, against Hooksett. Verdicts for plaintiffs, and defendant brings exceptions.

Exceptions sustained, and judgments entered for defendant.

Three actions of case, under Pub. Laws 1926, c. 89, to recover for injuries sustained by the plaintiffs in an automobile accident, which occurred on the Daniel Webster highway in Hooksett on January 29, 1928. Trial by jury with verdicts for the plaintiffs.

On the afternoon of the accident, the plaintiffs were proceeding from Manchester to Concord in a Cleveland sedan. Near the foot of Head's hill, so called, there was an accumulation of ice, on which their automobile skidded. The driver was unable to control the car, which turned around, broke through a fence on the east side of the road and plunged down a twelve-foot embankment. The expense of maintaining the Daniel Webster highway within the limits of Hooksett was borne equally by the town and the state. Other facts appear in the opinion.

The defendant's motions for a nonsuit and a directed verdict were denied subject to exception. Transferred by Sawyer, C. J.

Murchie, Murchie & Blandin and Alexander Murchie, all of Concord, for plaintiffs.

Thorp & Branch and F. W. Branch, all of Manchester, for defendant.

MARBLE, J.

Prior to the passage of Laws 1925, c. 52, the liability of towns for injuries caused to travelers by the defective railing of dangerous highway embankments was determined by the common-law rule of reasonableness. Ahern v. Concord, 82 N. H. 246, 248, 132 A. 570; Prichard v. Town of Boscawen, 78 N. H. 131, 133, 97 A. 563; Seeton v. Dunbarton, 72 N. H. 269, 56 A. 197, and cases cited.

Although the statute of highways had its inception in the days of horse-drawn vehicles, its provisions were held to embrace new methods of travel (Hendry v. North Hampton, 72 N. H. 351, 356, 56 A. 922, 64 L. R. A. 70, 101 Am. St. Rep. 681), including the automobile (Richmond v. Bethlehem, 79 N. H. 78, 81, 104 A. 773). And, since the essential inquiry in all cases was what the average prudent person charged with a like duty would have done under similar conditions, it was conceivable that juries might properly deem some embankments so dangerous as to require the erection of a barrier strong enough to prevent a motorcar from leaving the road. Kelsea v. Stratford, 80 N. H. 148, 152, 118 A. 9.

As motor traffic became more general, state appropriations for road building rapidly increased, and the duty of locating, constructing, and maintaining the more important highways of the state eventually devolved upon the state highway department. Pub. Laws 1926, c. 83. Laws 1903, c. 54, § 6, exempted towns altogether from liability on account of roads made or repaired in whole or in part by the state. Grace v. Town of Belmont, 78 N. H. 112, 97 A. 221. But even though towns had, as a practical matter, little supervision or control over the building or repair of state-aided roads within their territorial borders (their rights in that regard being limited to an appeal to the Governor and Council from the decisions of the highway commissioner, Pub. Laws 1926, c. 83, § 12), the liability removed in 1903 was partially restored by Laws 1915, c. 48, § 2, which provided that towns should be liable, in accordance with the terms of the statute, for injuries occasioned to travelers on such state-aided roads, except for the period during which state work was in progress and thirty days thereafter. Pub. Laws 1926, c. 89, § 4; Kelsea v. Stratford, 79 N. H. 273,108 A. 298.

It was doubtless a recognition of this anomalous situation and the hardship likely to result to municipalities therefrom that prompted the Legislature in 1925 to modify the towns' liability, so far as embankment railings were concerned, by substituting for the common-law standard of reasonable construction a fixed mechanical standard, sufficient whatever the circumstances of the particular case. In other words, "A new rule of conduct was set up, differing from the common law" (Carleton v. Railroad, 82 N. H. 263, 266, 132 A. 680, 682), and permitting towns "to exercise for protection from liability a degree of care less to some extent than that which had been required as the law had been administered" (Colston v. Railroad, 78 N. H. 284, 286, 99 A. 649, 650).

The language of the old statute declaring that towns were liable for damage caused by the insufficiency of culverts, sluiceways, bridges, and embankment railings, though retained in the new act, was followed by this important proviso: "Dangerous embankments shall be held to be sufficiently railed whenever the railing erected is the standard rail erected by the state highway department, or by a town, and the railing has been approved by the state highway department." Laws 1925, c. 52, § 2.

When this section was later embodied in Pub. Laws 1926, c. 89, § 2, the comma following the word "town" was omitted, but this omission does not evince an intention to change the meaning of the provision by declaring that a nonstandard rail shall be sufficient when approved by the highway department. This was the purport of the amendment as originally introduced; but the bill (House Bill No. 3) was not adopted in its original form. The provision in first draft was thus worded: "Provided, however, that the standard rail erected by the State upon highways or upon state aided highways shall be held to be a sufficient railing, and provided further that all railings erected by towns which shall be approved by the state highway commissioner shall be held to be a sufficient railing."

It would therefore appear that the railing specified by the state highway department as standard is the requisite maximum safeguard for all dangerous embankments, whether erected by the state or by a town. Approval by the department merely serves an evidentiary purpose for the town's protection. This is indicated by section 3, which provides for the examination of railings at a town's request, the record of the department's approval of the railings "as standard railings" (the words "as a sufficient railing" appear in the original draft), and the use of certified copies of the record in judicial proceedings.

Since a town fulfills its entire legal duty by maintaining the standard rail, it follows that this rail is the measure by which a town's responsibility is to be tested. If, then, in a case involving injury to a traveler by the breaking of a nonstandard rail, the plaintiff fails to sustain the burden of proving that standard construction would have prevented the accident, he cannot recover. See Collette v. Railroad, 83 N. H. 210, 140 A. 176; Morier v. Hines, 81 N. H. 48, 57, 122 A. 330.

At common law, towns were under no liability whatever to travelers for injuries caused by defective highways. Sargent v. Town of Gilford, 66 N. H. 543, 27 A. 306; Hickey v. Berlin, 78 N. H. 69, 96 N. H. 295. But chapter 57 of the Revised Statutes (1842) imposed upon them a somewhat limited liability for "the obstructions, insufficiency or want of repair of any highway or bridge." Section 1. This statute was many times re-enacted, but without radical amendment down to 1893. C. S. c. 61; G. S. c. 69; G. L. c. 75; P. S. c. 76.

"The act of 1893 was a change of policy as to municipal liability for default in highway maintenance. It was intended to relieve towns to a large extent from such liability." Robertson v. Monroe, 79 N. H. 336, 341, 109 A. 495, 498. No right of action was given except to one injured while "using the parts of the highway enumerated in the section, namely, a bridge, culvert, sluiceway, or embankment"...