Dow v. Town of Weare

• Decision Date: 26 July 1895
• Citation: 68 N.H. 345,44 A. 489
• Parties: DOW v. TOWN OF WEARE.
• Court: New Hampshire Supreme Court

44 A. 489

68 N.H. 345

DOW

v. TOWN OF WEARE.

Supreme Court of New Hampshire. Hillsboro.

July 26, 1895.

Exceptions from Hillsboro county.

Action by Jackson P. Dow against the town of Weare. There was a verdict for plaintiff, and defendants bring exceptions. Overruled.

The plaintiff's evidence tended to show that while driving on the highway in the evening of November 1, 1892, his horse slipped on the smooth and sloping side of a ledge which projected into the traveled track from 9 to 12 inches above the level of the road, and was so injured that it died the next day. For the purpose of showing the character of the ledge, and the liability of horses to slip when stepping on it, a witness for the plaintiff was permitted to testify, subject to exception, that a week or 10 days before the plaintiff's accident his horse slipped and fell on the same ledge. Allen, a civil engineer called by the plaintiff, testified that he examined the ledge on May 12, 1894, and that it then projected above the level of the road 4 inches at the lowest point and 7 inches at the highest. Whitney testified that the ledge did not at the time of the trial project as much as it did at the time of the accident, and that gravel had been put around it. To the question, "When was the gravel put there?" he replied, "On Thursday after the accident." The defendants objected to the question and answer, and they were ruled out. In speaking of the height of the ledge above the road at the time of the accident, the plaintiff's counsel, in the closing argument, said: "It was higher then than it is now, because the evidence is that there had been dirt carted in afterwards."' To this remark the defendants excepted. The statement of Whitney was not used as evidence of any admission on the part of the defendants.

Burnham, Brown & Warren and Drury & Peaslee, for plaintiff.

Oliver E. Branch, for defendant.

PARSONS, J. The questions presented by the defendants' exception to evidence of a similar accident at the same place to another person, and their objection in argument that the circumstances of the two were not shown to be in all respects similar, are so thoroughly and exhaustively considered in Darling v. Westmoreland, 52 N. H. 401, Cook v. New Durham, 64 N. H. 419, 13 Atl. 650, and Id., 65 N. H. 668, 23 Atl. 623,—that a re-examination at the present time is unnecessary, and would be unprofitable. The evidence was relevant. Whether it should have been ex-eluded for remoteness was a question to be determined at the trial term, and not open to exception.

A fact essential to the plaintiff's case was the condition of the highway at the point where he claimed it defective at the time of the accident. A material part of the description of the place being the extent of...