Lydston v. Rockingham County Light & Power Co.

CourtSupreme Court of New Hampshire
Writing for the CourtPEASLEE, J.
Citation70 A. 385,76 N.H. 23
Decision Date27 June 1908
70 A. 385
76 N.H. 23


Supreme Court of New Hampshire. Rockingham.

June 27, 1908.

Transferred from Superior Court.

Action by Fred W. Lydston, administrator, against the Rockingham County Light & Power Company. There was a verdict for plaintiff, and the cause was transferred on exceptions to the refusal to direct a verdict for defendant. Exceptions overruled.

Case for negligently causing the death of the plaintiff's intestate by a current of electricity

70 A. 386

from the defendant's electric light wires. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Wallace, C. J., on the defendant's exception to the denial of a motion for the direction of a verdict in its favor. The plaintiff's evidence tended to show that on the evening of July 3, 1906, and prior to the accident, there was trouble with the defendant's electric light lines in Portsmouth, caused by a leakage of electricity. The defendant was notified, but took no steps to shut off the current. On the pole at the intersection of Middle street and a cross-walk there was a running cable and weight coming to within three feet of the ground. The light there was then poor. The decedent's attention was called to that fact, and he knew that policemen sometimes kicked the pole to start up the light. He started to walk past the pole, and when near it put his hand to the pole and instantly received a shock which caused his death. There was no insulator on the running cable at the time of the accident, but one had been put on before the trial. A view was had, subject to the defendant's exception. The jury were instructed that changes at the pole were irrelevant and should not be regarded by them.

Page & Bartlett and Ernest L Guptill, for plaintiff.

Kivel & Hughes, for defendant.

PEASLEE, J. Travelers upon public highways have the right to do all acts reasonably incident to "a viatic use of the way." "There may be a difficulty in maintaining as law the proposition that a sidewalk, so situated as to be naturally and inevitably used for the hygienic purpose of a reasonable frolic of children on their way home from school, cannot be so used without being transformed from a way into a playground, or that by the gambols of young animals on their way to pasture their use of the road as a way is abandoned." Barney v. Manchester, 58 N. H. 430, 434, 437, 40 Am. Rep. 592. As to such acts, and as to the incidental diversions of persons of mature years, the rule is "that the point at which such diversions pass the bounds of legitimate recreation as a proper use of a highway is to be found by solving the question of reasonable use as a question of fact." Applying this principle to the present case, it cannot be held as matter of law that the act of a foot passenger in placing his hand upon a pole erected in the street is an unreasonable use of the way. The soundness of this proposition does not seem to be seriously contested. The claim of the defense is that the evidence is conclusive that the decedent willfully intermeddled with its property and...

To continue reading

Request your trial
21 cases
  • Kan., O. & G. Ry. Co. v. Dillon, Case Number: 30322
    • United States
    • Supreme Court of Oklahoma
    • 5 de maio de 1942
    ...530, 537, 85 A. 783; Crawford v. Railroad, 76 N. H. 29, 31, 78 A. 1078, Lydston v. Rockingham County Light & Power Co., 75 N.H. 23, 25, 70 A. 385, 21 Ann. Cas. 1236." ¶24 In cases of this character each case must depend more or less upon its own peculiar facts, but in any such case all the ......
  • Duval v. Metro. Life Ins. Co.
    • United States
    • Supreme Court of New Hampshire
    • 1 de fevereiro de 1927 all the authorities, among which are several decisions in this state. Tabor v. Judd, 62 N. H. 288; Lydston v. Company, 75 N. H. 23, 70 A. 385, 21 Ann. Cas. 1236; Hobbs v. Company, 75 N. H. 73, 70 A. 1082, 18 L. R. A. (N. S.) 939. But, conceding that the authorities ought to be disregarde......
  • State v. Cox, 3166.
    • United States
    • Supreme Court of New Hampshire
    • 20 de junho de 1940
    ...highways have the right to do all acts reasonably incident to 'a viatic use of the way.'" Lydston v. Rockingham, etc., Company, 75 N.H. 23, 70 A. 385, 386, 21 Ann.Cas. While travel may be with any end in view, a highway itself may be used only for the travel. The state may provide measures ......
  • Hartford v. Town of Gilmanton
    • United States
    • Supreme Court of New Hampshire
    • 31 de dezembro de 1958
    ...right to do all acts reasonably incident to 'a viatic use of the way''. Lydston v. Rockingham Co. Light & Power Company, 75 N.H. 23, 24, 70 A. 385, 386. It was held in Varney v. Manchester, supra, that a pedestrian who stopped on Elm Street from three to five minutes to view a procession co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT