Hall v. City of Concord

Citation52 A. 864,71 N.H. 367
Decision Date06 May 1902
CourtSupreme Court of New Hampshire

Exceptions from superior court; Peaslee, Judge.

Action by Augustus B. Hall against the city of Concord. From an order of nonsuit, plaintiff excepts. Exception overruled.

The plaintiff's counsel made the following opening statement: "This is an action on the case for negligently operating a steam roller, thereby frightening the plaintiff's horses and causing them to run away, and inflicting the injuries complained of. The defendant is a municipal corporation, chartered by the legislature in 1840. Laws 1849, c. 835. By section 14 of the chapter all the powers of the inhabitants as a municipal corporation are vested in the city council, consisting of the mayor, board of aldermen, and board of common council. By vote of the city council passed May 14, 1895, the commissioner of highways and the joint standing committee on roads and bridges were appointed a committee to purchase a steam roller for the benefit of the city, and an appropriation for that purpose was made out of the regular highway appropriation. In accordance with this vote, the steam roller in question was purchased and put into service upon the roads of the city. In the spring of 1899, Mrs. Mary B. G. Eddy, who frequently drives upon Pleasant street for pleasure and recuperation, was desirous of having the highway rebuilt and macadamized and made into a boulevard for a distance of about half a mile as it approached and passed her premises on the same street. Such reconstruction and improvement was of special advantage to Mrs. Eddy, and she offered to bear such portion of the damages and expenses of constructing the highway in an improved form as might seem just to the parties concerned. After consultation with the mayor and highway commissioner, Mrs. Eddy made a proposition to the board of mayor and aldermen in which she agreed to pay the city the sum of $5,000 toward the expense of the construction of the boulevard, the expenditure to be made under the supervision of the mayor and commissioner of highways.' In order to obtain the benefit of this proposition, and to secure for the city the proffered sum for the improvement of its highway and for its own profit, the city voted, by its board of mayor and aldermen, to accept Mrs. Eddy's proposition, and authorized the mayor to sign a certain contract with Mrs. Eddy on behalf of the city. This contract provided that, in consideration of $5,000, paid by Mrs. Eddy, the city would macadamize the street to a certain width, and according to certain specifications, 'in a thorough and workmanlike manner, to the satisfaction of the commissioner of highways of said city and of the mayor thereof.' This contract was dated May 4, 1899. On the same date Mrs. Eddy presented a petition to have Pleasant street widened and straightened, and under this petition the street was widened and straightened, and the grade thereof changed, under proper proceedings by the board of mayor and aldermen. The mayor and Mrs. Eddy executed the contract, work was begun thereunder, and the street was constructed as therein provided, except that it was not completed within the time limited. Before the work was completed, and from time to time during the process of construction, Mrs. Eddy paid to the city the sum provided for in her contract, and $3,500 in addition, making $8,500 in all. The work cost the city about $5,000 additional. The mayor and the commissioner of highways superintended and directed the work jointly, the commissioner being present most of the time, and the mayor occasionally. The steam roller was used in the construction of the macadamized road under the direction of the mayor and commissioner of highways. On October 21, 1899, the plaintiff was driving past, in the exercise of due care, and the workmen so carelessly operated the steam roller that the accident followed." Upon this opening statement, the contract therein referred to, and the special act as to the highway commissioner for Concord (Laws 1891, c. 186), the defendants moved for a nonsuit on the ground that they were not liable for the negligence complained of. The motion was granted, subject to the plaintiff's exception.

Eastman & Hollis, for plaintiff.

Edmund S. Cook, for defendants.

BLODGETT, C. J. The defendants' only duty in respect of the highway upon which the plaintiff was injured while in the exercise of the public right of using it was the statutory one to maintain it in suitable repair, and this duty it is conceded they properly performed. The sole ground of complaint is the careless operation of the defendants' steam roller by workmen engaged in macadamizing the highway at the time of the plaintiff's injury, and who were presumably employed by the commissioner of highways. Assuming that "a municipal corporation is liable at common law for injuries to private rights resulting from the negligent performance of a public duty by agents and servants whom it has the power to direct and control" (Rhobidas v. City of Concord, 70 N. H. 90, 47 Atl. 82, 51 L. R. A. 381), the act of which the plaintiff complains was not the act of the defendants. By the special legislative enactment of 1891 (Laws 1891, c. 186) the whole territory of the defendant city is constituted one highway district, and placed under the superintendence of a commissioner of highways, who (section 1) "shall have all the powers, perform all the duties, and be subject to all the liabilities which by law appertain to surveyors of highways, except so far as the same are changed by the provisions of this act." Sections 2 and 3 provide for his election by the city council, make him subject to removal by the council at their discretion and place him under the direction of the mayor and aldermen with reference to the expenditure of money and accountability therefor; and then, by section 4, it is imperatively declared that "he shall have charge of the roads and bridges in the care of the city, and all repairs thereon shall be under his direction." Possessed of the broad and exclusive authority conferred by section 4 in respect of roads and bridges in the care of the city and all repairs thereon, the defendants' commissioner of highways is not to be regarded as their agent or servant, but as a public officer, deriving his authority from the legislature, which possesses the paramount control over all the public highways within the state, and may place their management and repair in the hands of such agencies as it may deem to be most fitting. Neither the city nor the board of mayor and aldermen can direct or control the commissioner in the performance of the duties so intrusted to him: It is for him alone to determine in what manner and through what instrumentalities repairs shall be made, and to do all other things necessary in their direction, control, and management. This being so, for his misfeasance, or that of his employes, the defendants are not liable. Rhobidas v. City of Concord, supra; Gross v. City of Portsmouth, 68 N. H. 266, 267, 33 Atl. 256, 73 Am. St. Rep. 586, and authorities cited; Downes v. Town of Hopkinton, 67 N. H. 456, 40 Atl. 433; Wakefield v. Town of Newport, 62 N. H. 624, 625, and numerous other cases.

No more are the defendants liable because the repairs were being superintended by the mayor and the commissioner jointly. The general statutory provision that money for highway repairs shall be expended by the selectmen, or surveyors of highways, or agents appointed for the purpose by the selectmen (Pub. St. c. 73, § 6; Laws 1899, c. 29, § 3), has no application to the city of Concord; and, plainly, the board of mayor and aldermen had no power to make the Eddy contract, because, by the city charter and by express statutory provisions, the administration of all the fiscal, prudential, and municipal affairs of the city is vested in the city council, consisting of the mayor, board of aldermen, and board of common council (Charter of Concord, Laws 1849, c. 835, §§ 2, 14; Pub. St c. 50, § 1; Kelley v. Kennard, 60 N. H. 1, 3); and for this reason also the mayor and aldermen could confer no authority upon anybody in the superintendence of the repairs and improvements in question. But, apart from these considerations, the Pleasant street highway was then an existing highway "in the care of the city," and consequently the commissioner had charge of it and the direction of all repairs upon it, by virtue of the specific and mandatory provisions of the act of 1891, which cannot be construed to mean that the commissioner has no jurisdiction as a public officer except when the mayor and aldermen omit to appoint agents to do the work imposed upon him by that act. The joint superintendence of the mayor in the making of the repairs did not constitute an assumption by the city of their control and direction (Bowden v. City of Rockland [Me.] 51 Atl. 815, 810); and, moreover, the legitimate inference from his alleged supervisory action over the work is that he was exercising the power as to the expenditure of money conferred on the board of mayor and aldermen by the act of 1891. But if he actually assumed to undertake the joint direction of the work, the defendants are not responsible for his performance of that which he had no power to do, and which they had no power to authorize. Gross v. City of Portsmouth, supra, and authorities there cited.

The plaintiff's contention that the defendants are liable on the ground that the work in progress on the highway when he was injured was constructive work, which the defendants were at liberty to do directly by agents or servants, or indirectly through contractors, the same as in the original construction of a highway, is not based on anything appearing in the reserved case, nor is it well founded. The fact that Mrs. Eddy induced the board of mayor and aldermen to make an extraordinary expenditure of money on the highway did not transform...

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