Downes v. Town of Hopkinton

• Decision Date: 28 July 1893
• Citation: 67 N.H. 456,40 A. 433
• Parties: DOWNES v. TOWN OF HOPKINTON.
• Court: New Hampshire Supreme Court

40 A. 433

67 N.H. 456

DOWNES

v. TOWN OF HOPKINTON.

Supreme Court of New Hampshire. Merrimack.

July 28, 1893.

Petition by Mary C. Downes for leave to file a claim against the town of Hopkinton for injury, under the highway law. Petition denied.

Petition for leave to file the statement required by section 7, c. 76, Pub. St., in case of claim for injury, under the highway law. Facts found by the court: May 6, 1892, the highway surveyor was repairing the highway by removing therefrom a large rock, by blasting, of which the plaintiff, a traveler, had no notice. When she arrived at a point about 230 feet from the rock, but not in sight of it, the noise of the blast frightened her horse so that he wheeled around, overturned the carriage, and threw her upon the ground, whereby she was injured. If the foregoing facts are sufficient evidence of a defect, etc., within the meaning of the statute, leave is granted to file the statement; otherwise it is denied.

Bingham & Mitchell, for plaintiff.

Herman W. Greene, for defendant.

SMITH, J. If it be assumed that the rock which the surveyor was blasting was a defect, within the meaning of the statute (Pub. St. c. 76, § 1), it was not the cause of her injuries. She did not come in collision with it; was not upset by it; her horse was not frightened by it; nor were any of the fragments, when it was blasted, thrown upon her or upon her horse. They were not within sight of it when the blast occurred. The sole cause of the accident was the sound of the blast.

If the surveyor was guilty of negligence, in not giving seasonable notice of the blast to the plaintiff, the law affords her a remedy if injured thereby, in an action against him. But a town is not liable to a traveler injured by the negligence of a highway surveyor engaged in repairing a highway. Hardy v. Keene, 52 N. H. 370; Wakefield v. Newport, 62 N. H. 624. The highway liability of towns to travelers is created by statute. They are liable only for injuries resulting from defects which render the highway unsuitable.

Whether a highway is or is not defective is a question of fact for the jury. But the construction of the terms of the statute (Pub. St. c. 76, § 1) is for the court. Ray v. Manchester, 46 N. H. 59, 60; Johnson v. Haverhill, 35 N. H. 74. There is no competent evidence in this case of any defect in the highway which caused the plaintiff's injuries. A town is not liable for damage done by its fire department (Edgerly v. Concord, 59 N. H. 78, and ...