Judd v. Town of Claremont

• Decision Date: 13 March 1891
• Citation: 66 N.H. 418,23 A. 427
• Parties: JUDD v. TOWN OF CLAREMONT.
• Court: New Hampshire Supreme Court

23 A. 427

66 N.H. 418

JUDD

v. TOWN OF CLAREMONT.

Supreme Court of New Hampshire. Sullivan.

March 13, 1891.

Exceptions from Sullivan county; before Justice Bingham.

Action by Lois L. Judd against the town of Claremont for injuries received from a defective highway. Judgment for defendant. Plaintiff excepts. Exceptions overruled.

G. A. Davis and E. D. Baker, for plaintiff.

Ira Colby and H. W. Parker, for defendant.

SMITH, J. 1. When this action was commenced the plaintiff was a resident of Vermont, the writ being indorsed by a resident of this state. At the opening of the trial the plaintiff, who had become a resident of this state, moved to strike off the name of the indorser. This motion presents no question of law. Whether there should be a change of indorsers is a question of what justice requires, and will be settled at the trial term.

2. The plaintiff seeks to recover damages for injuries from a defective highway. The alleged defect was a depression in the center of the highway, in which were some fast stones uncovered, and some loose stones. The horse with which she was traveling stepped upon a loose stone, and partially fell. The plaintiff was thereby thrown from her carriage and injured. Two witnesses testified, subject to exception, that they saw the horse stumble on a previous occasion. No evidence was introduced to show that this fact was brought to the plaintiff's knowledge. The evidence was competent on the question whether she was driving a suitable horse. Whether she used ordinary diligence to provide herself with a suitable horse is another question. The fact that the horse had been owned by her husband seven years, and that she had driven him a good deal, afforded evidence from which the jury might find that, if the horse was not a suitable one, she had opportunities for becoming informed of the fact.

3. A witness named Thomas, who first found the plaintiff after the accident, described when and how he found her. The defendant called one Rossiter, who testified that he was at the place of the accident with Thomas a few days after it occurred, and that Thomas pointed out where he found the plaintiff. This evidence was competent, because it tended to contradict Thomas.

4. The plaintiff's husband testified to finding a good many loose stones and fast stone points of ledges in the high way. A witness named Swain testified that she was at the place of the accident with him soon after it occurred, and said to him, "There are no stones in the road," and that he made no reply. This evidence was competent, becauseit tended to contradict Mr. Judd. His silence was inconsistent with his testimony at the trial.

5. The plaintiff requested the court to charge "that it was the duty of the officers of Claremont in the month of June, 1888, to cause all loose obstructions to travel to be removed from this hill where the accident happened," as required by Laws 1887, c. 101, § 1;¹ also "that if a stone obstructed the travel upon this road at the time and place of this accident, and the accident would not have occurred had the road been reasonably smooth and...