Hood v. City of Nashua

• Decision Date: 04 June 1940
• Citation: Hood v. City of Nashua, 91 N.H. 98, 13 A.2d 726 (N.H. 1940)
• Parties: HOOD v. CITY OF NASHUA.
• Court: New Hampshire Supreme Court

13 A.2d 726

HOOD

v. CITY OF NASHUA.

Supreme Court of New Hampshire. Hillsborough.

June 4, 1940.

Transferred from Municipal Court of Nashua; Clancy, Judge.

Action by Robert Hood against the City of Nashua for damages from the maintenance of a nuisance. There was a verdict for plaintiff, and defendant excepted to the denial of its motion for a nonsuit, and also to the denial of its motion that the verdict be set aside as against the law, the evidence and its weight, and as excessive.

Exceptions overruled.

Action, for damages from maintenance of a nuisance. The plaintiff owns a house on the west side of the Old Lowell Road in Nashua. The land east of the road slopes downward towards the west, and surface water reaching the east side of the road is carried across the road by a culvert and emptied on land north of and adjoining the plaintiff's. The court found that the city maintained the culvert in a negligent manner "by gathering the water in such large quantities that the same was flowed upon the land adjoining the plaintiff's and therefrom percolated into the cellar of the plaintiff's dwelling", and the plaintiff was awarded a verdict.

The defendant excepted to the denial of its motion for a nonsuit, and also to the denial of its motion that the verdict be set aside as against the law, the evidence and its weight, and as excessive. Transferred by Clancy, J.

Albert Terrien, of Nashua, for plaintiff.

Edward J. Lampron, City Sol., of Nashua, for defendant.

ALLEN, Chief Justice.

One position the defendant takes is that the evidence warranted no conclusion that the water entering the plaintiff's cellar came from the culvert. It is admitted that the cellar is flooded only at times when water runs through the culvert in quantity. There was evidence that the land north of the plaintiff's and on which the water from the culvert emptied had "a very hard subsoil about two feet from the surface" and that the plaintiff's cellar floor was at a level which permitted the flow of water into it from the topsoil. The distance from the outlet of the culvert to the cellar was not over five rods. Evidence that the water came from other sources, if it might be accepted, did not require acceptance. The opinion evidence to the effect that the concentration of surface water by the culvert resulted in its seepage into the cellar was received without objection. Thus evidence amply sufficed for the inference that the maintenance of the culvert was the cause of the entrance of water into the cellar.

The conclusion of negligent maintenance of the culvert was proper. Standards of custom and practice, while evidence of due care, are not its test. Bouley v. Tilo Roofing Co., N. H., 10 A. 2d 219. The opinion testimony that the maintenance was proper therefore had only such weight on the issue of negligence as the court's consideration found it should have. In general, when a witness may be permitted to state his views of care or fault, the trier may disregard them and draw his own conclusion based upon all the relevant evidence, although he may not have the benefit of special learning and knowledge helpful in reaching a correct verdict. Vallee v. Spaulding Fibre Company, 89 N.H. 285, 289, 290, 197 A. 697.

The complaint here is not in the...