Hickey v. City of Berlin

• Decision Date: 07 December 1915
• Citation: 96 A. 295,78 N.H. 69
• Parties: HICKEY v. CITY OF BERLIN et al.
• Court: New Hampshire Supreme Court

96 A. 295

78 N.H. 69

HICKEY

v. CITY OF BERLIN et al.

Supreme Court of New Hampshire. Coos.

Dec. 7, 1915.

Transferred from Superior Court, Coos County; Branch, Judge.

Action by James J. Hickey against the City of Berlin and others. On denial of defendants' motion for nonsuit, the case was transferred on defendant's exceptions. Exceptions sustained.

Case, for personal injuries alleged to have been caused by a defective highway culvert. On the night of November 22, 1913, while the plaintiff was traveling upon a highway in the defendant city, the wagon in which he was riding stopped so suddenly that he was thrown out and received the injuries for which he seeks to recover. An examination made the next morning disclosed that the highway was washed out to a depth of about two feet for a distance of three feet either side of a plank culvert in the highway, leaving the culvert intact. The wagon was stopped by the forward wheels striking the culvert Additional facts are stated in the opinion.

Jesse F. Libby, of Gorham, and Matthew J. Ryan, of Berlin, for plaintiff. Goss & James and Rich & Marble, all of Berlin, for defendants.

YOUNG, J. A traveler who is injured by a defect in a highway is remediless at common law. Farnum v. Concord, 2 N. H. 392. If, therefore, the plaintiff can maintain this action it is because section 1, c. 59, Laws of 1893, gives him that right. This section provides, among other things, that:

"Towns are liable for damages happening to any person, his team or carriage, traveling upon a bridge, culvert, or sluiceway, or dangerous embankments and defective railings, upon any highway, by reason of any obstruction, defect, insufficiency, or want of repair of such bridge, culvert, or sluiceway, or dangerous embankments and defective railings, which renders it unsuitable for the travel thereon."

The defendants concede that, if the culvert as originally constructed was defective within the meaning of this section, it can be found that they were in fault for the plaintiff's injuries, but they contend that that cannot be found. The only defect of which the plaintiff complains is the insufficiency of the culvert. The question, therefore, on this branch of the case is whether there is any evidence tending to prove that the culvert was insufficient. The test to determine the sufficiency of the culvert is not to inquire whether it caused the washout, but whether it was such a culvert as the ordinary man would have maintained at this place; for, while the statutes make it the duty of towns to maintain sufficient culverts, it is held that they perform their duty in this respect if they maintain such a culvert as the ordinary man would maintain in a similar situation. Hubbard v. Concord, 35 N. H. 52, 69 Am. Dec. 520.

The evidence relevant to the issue of the sufficiency of this culvert shows that at some time those living on the east side of the river began to use a path through the woods, and that this path was but little more than a cart path at the time the accident happened, notwithstanding it had been used for public travel for 20 years or more and had been repaired to some extent by the city. Some years before the accident (perhaps ten) the city cut down a small hill and used the material removed from the cut to raise the road on both sides of a brook which crossed it at this place. Raising the road made it necessary to install a culvert. The size of this culvert did not appear, but it did appear that it was subsequently enlarged. There was no evidence as to why it was enlarged, or as to the extent or the character of the watershed, or as to the amount of water that would be...