Miner v. City of Franklin

• Decision Date: 03 October 1916
• Citation: 78 N.H. 240,99 A. 647
• Parties: MINER v. CITY OF FRANKLIN (two cases).
• Court: New Hampshire Supreme Court

99 A. 647

78 N.H. 240

MINER

v. CITY OF FRANKLIN (two cases).

Supreme Court of New Hampshire. Merrimack.

Oct. 3, 1916.

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

Two actions for personal injuries by Harry A. Miner against the City of Franklin, and by George L. Miner against the same defendant. Verdicts for plaintiffs, and cases transferred on exceptions to denial of motions for nonsuits. Exceptions overruled.

The accident happened upon the Hill road in the city of Franklin, September 13, 1914. The driver turned out to pass two other cars, struck a stone in the road, and immediately thereafter went partly over the embankment, thereby causing the injuries complained of. The defendant's motions for nonsuits were denied, subject to exception. After the verdicts were returned the defendant moved to set them aside as against the law and the evidence, and in support of the motions showed the following facts: In 1913 and 1914, Franklin received from the state certain sums apportioned for state aid to the city for expenditure upon the Hill road and the money was so expended. At the close of the season in 1914, the work of reconstruction had extended from Franklin to within about two miles of the place of the accident. The furnishing of state aid to continue the work in 1915 depended upon the action of the city in appropriating more money and again making application for state aid. No such application was made until 1915. In 1913, a culvert some 800 feet from the place of the accident was reconstructed with state aid and under state supervision. The accident happened about 115 feet from the Hill line, and the road in that town was state aided. It was found that the defendant and its counsel were not negligent in not knowing of the provision of Laws 1903, c. 54, § 6, relating to nonliability of cities and towns for accidents occurring upon state-aided roads. The motions were denied, subject to exception.

Martin & Howe and Henry Robinson, all of Concord, for plaintiffs. Thomas F. Clifford, of Franklin, for defendant.

PEASLEE, J. The defendant's argument upon its motions for nonsuits seems to be chiefly based upon the contention that the weight of the evidence was against the plaintiffs. However this may have been, an examination of the record discloses sufficient testimony to warrant a finding that the automobile went over an unrailed embankment, thereby causing the injuries complained of. The argument that the plaintiff, who was driving the car, was guilty of contributory negligence, Is not supported by conclusive proof that ordinary men would not have acted as he did in the premises. Therefore it cannot avail the defendant here. Blood v. New Boston, 77 N. H. 464, 92 Atl. 954.

The fact that the stone in the road may have been a contributing cause for the accident does not relieve the defendant from liability, if the unrailed embankment was also a cause. Pritchard v. Boscawen, 97 Atl. 563.

The motions to set aside the verdicts as against the law and the evidence, because it appeared from facts not in evidence at the trial that portions of the Hill road were state...