Knight v. Town of Haverhill

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, C. J.
• Citation: Knight v. Town of Haverhill, 77 N.H. 487, 93 A. 663 (N.H. 1915)
• Decision Date: 02 March 1915
• Parties: KNIGHT v. TOWN OF HAVERHILL (three cases).

93 A. 663

77 N.H. 487

KNIGHT

v. TOWN OF HAVERHILL (three cases).

Supreme Court of New Hampshire. Grafton.

March 2, 1915.

Transferred from Superior Court, Grafton County; Pike, Judge.

Petitions by L. E. Knight, administrator of Dora O. Knight, deceased, and by L. E Knight, administrator of Dorothy M. Knight, deceased, and by M. C. Knight, administrator of Clara S. Knight, deceased, against the Town of Haverhill, for leave to file claims for injuries alleged to have been caused by defective highway, causing the death of intestates. The superior court found that the petitions should be granted if in each case, as a matter of law, there was sufficient evidence for the jury of the intestates' care and of defendant's negligence as the cause of the injury, and, if in any case there was no such evidence, the petition was to be denied. Case discharged.

Edgar W. Smith, of Wells River, Vt., and Edward A. Lane, of Pittsfield, for plaintiffs. Raymond U. Smith and Fred S. Wright, both of Woodsville, for defendant.

PARSONS, C. J. The granting of the petitions by the court, as the order was made, involved a finding that the petitioners were unavoidably prevented from filing the statement required by section 7, c. 76, of the Public Statutes, within the time limited therein, and that manifest injustice would otherwise be done unless the evidence conclusively established that no claim could be sustained against the town. P. S. c. 76, §§ 8, 9; Owen v. Derry, 71 N. H. 405, 406, 52 Atl. 926.

A petition is properly dismissed when it appears that the plaintiff has no cause of action against the defendant, as would be the case if the defect complained of was one for which no right of action was given by the statutes. Miner v. Hopkinton, 73 N. H. 232, 60 Atl. 433; Drew v. Bow, 74 N. BE. 147, 65 Atl. 831. "The questions of law or fact which the plaintiff desires to litigate are not ordinarily determined upon the preliminary petition. It is sufficient if it appears that there are important questions which, through accident, mistake, or misfortune, the plaintiff will be unable to try unless the petition is granted." While "evidence sufficient to authorize the submission of the plaintiff's case to the jury will sustain the requisite finding of 'manifest injustice,'" the petition is not ordinarily to be denied unless "it conclusively appears from the admitted facts or the allegations of the petition that the plaintiff has and can have no valid claim against the defendants." Owen v. Derry, 71 N. H. 405, 406, 52 Atl. 926, 927. Whether the legal question made determinative by the superior court can properly be held decisive of the right to maintain the petitions, and whether there was or was not evidence before the court in these proceedings sufficient to sustain the petitions under such ruling, are mere academic questions, the decision of which will not advance the litigation.

Actions for injury causing death must be brought under section 10, c. 191, of the Public Statutes, within 2 years of the death, and the amount recoverable is limited. Laws 1913, c. 201. The provisions of the highway statute giving the traveler a right of recovery for injury received in consequence of a defective highway do not control in the...