Hendry v. Town of N. Hampton

• Decision Date: 31 December 1903
• Parties: HENDRY v. TOWN OF NORTH HAMPTON.
• Court: New Hampshire Supreme Court

56 A. 922

72 N.H. 351

HENDRY

v. TOWN OF NORTH HAMPTON.

Supreme Court of New Hampshire. Rockingham.

Dec. 31, 1903.

Transferred from Superior Court.

Action by Carrie M. Hendry against the town of North Hampton. Verdict for plaintiff, and case transferred from superior court on defendant's exceptions. Exceptions overruled.

(1) The plaintiff's evidence tended to show that on the afternoon of May 7, 1900, while she was slowly riding a bicycle along a highway in the defendant town, and exercising due care, she ran into a mud puddle, was thrown over a dangerous embankment which was not railed or guarded, and received the injuries for which she seeks to recover. The wheel track in which she was riding was about two feet from the edge of the embankment. The defendants seasonably moved for a nonsuit and the direction of a verdict in their favor, on the ground that the plaintiff was guilty of contributory negligence, and excepted to a denial of the motions. The defendants excepted to the denial of requested instructions upon the question of contributory negligence, as follows: "No matter if the embankment complained of was dangerous, and, to be suitable for the travel thereon, should have been protected by railing, still the plaintiff cannot recover from the town if her own fault or negligence contributed in any degree to cause the injury. The plaintiff cannot recover from the town if the damage she sustained was in the least degree caused by her own fault or negligence." The court, after defining and illustrating "ordinary care," instructed the jury as follows: "It is the duty of every person who is traveling upon the highway to use ordinary care to avoid being injured. When you are considering whether or not the plaintiff could have prevented the accident by the use of ordinary care, you may consider, with all the other evidence, the plaintiff's age and her experience in riding a wheel, and you may also consider whether you, if you had been in her place, could have avoided the accident. To decide this question, you will only have to ask yourselves whether the plaintiff could have avoided the accident by the use of ordinary care, including the use of her eyes. If she could, that is the end of the case, and your verdict will be for the defendants."

(2) The defendants contended that the plaintiff's injury was proximately caused by the hole in the road, and not by the embankment; and they requested the following instruction, which was denied, subject to exception: "If the mud puddle or hole in the road was the proximate or prime moving cause of the accident, or the cause without which the accident would not have happened, the plaintiff cannot recover."

(3) The defendants also requested the following instructions: "The defendant town was not obliged by law to keep its highway in suitable repair and condition, so that persons on bicycles could ride safely over it, at the time of the injuries complained of by the plaintiff. A bicycle not being a carriage within the meaning of the statute giving travelers who are injured by reason of a dangerous embankment the right to recover against a town, the plaintiff cannot recover in this action, even though the embankment complained of was dangerous, and required a railing in order to make it reasonably safe for the ordinary travel thereon." Upon this question the jury were instructed as follows "A bicycle is not a carriage within the meaning of the statute giving travelers who are injured by reason of a dangerous embankment the right to recover against a town, but a person riding a wheel is a traveler within the meaning of that statute. If the town maintained this highway in such a condition that it was reasonably safe for the ordinary travel thereon, it has done its whole duty in this respect; that Is, if the road did not require a railing to make it safe for such travel, the town has done its whole duty." The defendants excepted to the foregoing instruction and to the refusal to give those requested.

Emery, Simes & Corey, for plaintiff. Page & Bartlett, for defendants.

REMICK, J. 1. It is found by the superior court that there was evidence tending to prove that the plaintiff was in the exercise of due care. Furthermore, we have examined the evidence for ourselves, so far as it is made a part of the record, and are of the opinion that it warrants the finding of the superior court in this particular. The defendants' motions for a nonsuit and verdict upon the ground that the plaintiff was not in the exercise of due care were therefore properly overruled. The defendants' requests for instructions upon this point, so far as they embodied a correct statement of the law, were given in substance; and no error appears either in the instructions given or in the refusal of those requested.

2. The contention of the defendants that, because the hole in the road gave to the plaintiff the impetus which carried her over the unrailed and dangerous embankment, therefore the hole, not the unrailed embankment, was, as a matter of law, the cause of her injury, is best answered by the authorities, which are so conclusive against the defendants' contention—at least in this jurisdiction—that to enter upon a discussion of the question would be a work of supererogation. Littleton v. Richardson, 32 N. H. 59, 63; Stark v. Lancaster, 57 N. H. 88; Merrill v. Claremont, 58 N. H. 468; Ela v. Cable Co., 71 N. H. 1, 51 Atl. 281; Elliott, R. & S. § 617. According to the view contended for by the defendants, there could have been no recovery in Norris v. Haverhill, 65 N. H. 89, 18 Atl. 85; 163 Briefs & Cases, 159; and Seeton v. Dunbarton, 72 N. H. 269, 56 Atl. 197. An able and instructive discussion of the question may be found in Sherwood v. Hamilton, 37 U. C. Q. B. 410, where the conflicting authorities are exhaustively reviewed, and the New Hampshire rule adopted as being in accordance with the weight of authority and the better reasoning. The instructions given upon this point were in accordance with the principles established by the authorities cited, and the instructions requested were properly denied.

3. The defendants' next and last contention is that section 1, c. 59, p. 47, Laws 1893,...