Leslie v. City of Keene

• Decision Date: 03 April 1917
• Citation: 78 N.H. 607,101 A. 661
• Parties: LESLIE v. CITY OF KEENE.
• Court: New Hampshire Supreme Court

101 A. 661

78 N.H. 607

LESLIE

v. CITY OF KEENE.

Supreme Court of New Hampshire. Cheshire.

April 3, 1917.

Transferred from Superior Court, Cheshire County.

Action by Mary L. Leslie, administratrix, against the City of Keene. Transferred on plaintiff's exception to verdict directed for defendant. Exception overruled.

Case for causing the death of the plaintiff's intestate. Trial by jury. Verdict directed for the defendants. The intestate, who was less than four years old, was traveling on or near the east line of Damon court toward Beaver street in a cart drawn by a boy of five at the time the accident happened, and just before they reached that street the boy turned so sharply to the right that the cart tipped over on one wheel and threw the intestate out. Later his body was found in Beaver brook. There is no sidewalk on the east side of the court, but those who have occasion to use that side of the street travel in a well-defined path very near the east line of the court. Beaver brook is 13 feet east of this path. The bank of the brook is a little more than 2 feet lower than the path, and the slope is regular.

Benton & Pickard, of Keene, for plaintiff. John E. Allen and William H. Watson, both of Keene, for defendant.

YOUNG, J. The plaintiff's exception must be overruled, unless it can be found that the intestate was traveling on a dangerous embankment within the meaning of Laws 1893, c. 59, § 1, at the time the accident happened. Wilder v. Concord, 72 N. H. 259, 263, 56 Atl. 193. And while it is true, as the plaintiff' contends, that the question of whether an enbankment is dangerous, within the meaning of this section, is for the jury, it is also true that whether there is any evidence from which that can be found is a question for the court, and all fair-minded men must agree that, in so far as persons traveling on foot are concerned, a regular slope of one foot in six is not in and of itself a dangerous embankment within the meaning of that section. If it is true, as the plaintiff contends, that there should be a railing on the east side of Damon court at the place where the accident happened for the protection of those traveling on Beaver street, it comes to nothing in so far as the questions we are considering are concerned, for the intestate was traveling on Damon court—not Beaver street—at the time the accident happened. Laws 1893, c. 59, § 1. If, therefore, there is a dangerous embankment on the east side of Damon court at and near its...