Kelsea v. Town of Stratford

• Decision Date: 07 October 1919
• Docket Number: No. 1595.,1595.
• Citation: 108 A. 298
• Parties: KELSEA v. TOWN OF STRATFORD.
• Court: New Hampshire Supreme Court

108 A. 298

KELSEA

v. TOWN OF STRATFORD.

No. 1595.

Supreme Court of New Hampshire. Coos.

Oct. 7, 1919.

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

Action by Burleigh H. Kelsea, administrator, against the Town of Stratford, resulting in dismissal of the action, and plaintiff excepts. Exception sustained.

Case for negligence. The declaration alleged that the plaintiffs intestate was injured through the negligence of the defendant in failing to properly maintain a certain highway within its limits upon which the deceased was traveling, in consequence of which negligence he was thrown over an embankment. It was agreed that the highway where the accident occurred is a part of what is known as the "West Side Road" as established by chapter 155, Laws 1909. Thereupon the defendant moved that the action be dismissed. The motion was granted, and plaintiff excepted.

Drew, Shurtleff, Morris & Oakes, of Lancaster (E. C. Oakes, of Lancaster, orally), for plaintiff.

Horace J. Holden, of Colebrook, and Sullivan & Daley, of Berlin (Horace J. Holden, of Colebrook, orally), for defendant.

WALKER, J. This action is brought under chapter 48, § 1, Laws 1915, which provides that "towns are liable for damages happening to any person" in consequence of defects in a highway, such as caused the plaintiff's injuries, "upon any highway which the town has the duty of maintaining." Section 2 is as follows:

"Towns shall not be liable for such damages happening upon state roads within their borders, nor upon highways within their borders which are constructed or repaired in whole or in part by the state or by state aid, while such construction is in process or repairs being made, nor for thirty days after the construction or repairs are completed, but shall thereafter be liable as provided in section 1 of this act."

The defendant's contention in support of its motion to dismiss the action is that the highway upon which the accident happened is a "state road," which, under section 2 of the act referred to, exempts the town from liability for the plaintiff's injuries. The sole question thus presented is whether the highway where the accident happened is a "state road" as that phrase was understood and used by the Legislature in section 2.

It is conceded that it was a part of the "West Side Road," which was established by the Legislature in 1909 (Laws 1909, c. 155, § 15, as added to Laws 1905, c. 35), and the argument is that that trunk line road must be regarded as a state road. But this contention is unsound in view of the opinion in Grace v. Belmont, 78 N. H. 112, 97 Atl. 221, which, while it related to an accident on the "Merrimack Valley Road," another trunk line, is much in point in this case, since both roads were established by the same statute. In that case it was determined that the Merrimack Valley Road was a state-aided road, maintained in part by funds of the state and in part by funds of the towns in which it is located, and that Belmont was exempt from liability, because state-aided roads were, at the time of the accident then considered, excluded from the operation of section 6, c. 54, Laws 1903, which was repealed by the statute under which this action is brought. Previous to that decision, the same result was reached in Hanover v. Burroughs, 215 Fed. 817, 132 C. C. A. 159, which was approved and followed in Grace v. Belmont. The Hanover Case related to the West Side Road which was not deemed to be a...