Noble v. City of Portsmouth

• Decision Date: 11 March 1892
• Citation: 30 A. 419,67 N.H. 183
• Parties: NOBLE v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

30 A. 419

67 N.H. 183

NOBLE

v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire. Rockingham.

March 11, 1892.

Case reserved from Rockingham county.

Action by Ann Noble against the city of Portsmouth.

Case for injuries from a defective highway. The injury complained of was a sprain of the ankle and foot in the statutory statement filed by the plaintiff the amount of damages claimed was $1,500, and in the writ $1,000. Before the case was opened to the jury the plaintiff was allowed to amend by increasing the ad damnum to $3,000, and the defendant excepted. Verdict $1,559. Case reserved. Verdict set aside.

In his closing argument to the jury, the plaintiff's counsel, after he had finished the discussion of the question of the defendant's liability, said to them upon the question of damages: "When people get $1,200 or $1,500 for a fracture, is $3,000 too much in this case?" The defendant seasonably objected to this remark as not authorized by any evidence in the case. Thereupon counsel desisted, but neither withdrew the remark nor asked the jury to disregard it, and no action was taken by the court in reference to it.

J. S. H. Frink and C. Page, for plaintiff.

E. L. Guptill and S. W. Emery, for defendant.

SMITH, J. Whether justice required the allowance of the amendment increasing the ad damnum was a question for the trial court, and ordinarily such questions will not be revised at the law term. Broadhurst v. Morgan (N. H.) 29 Atl. 553. It is usual to grant such leave as of course, upon motion, before trial. No reason has been shown why the exception to its allowance should be sustained. Gen. Laws, c. 226, § 9; Laws 1879, c 7, § 1;" Howe, Pr. 365; Judge of Probate v. Jackson, 58 N. H. 458. The statement required by Gen. Laws, c. 75, § 7, must be filed within 10 days from the date when the traveler was injured. He is required to give, among other matters, a full description of his injuries, the extent of the same, and the amount of damages claimed therefor. The statement is sufficient if it describes the injury as it existed at the time it was filed. "The plaintiff may recover damages not only for the injury described, but also for all the directly resultant injurious consequences, though they may not appear until long afterwards." Robin v. Bartlett, 64 N. H. 426, 429, 13 Atl. 645. The object of the statement is to enable the town authorities to investigate the alleged defect in the highway, and the extent of the injuries sustained by the traveler. Leonard v. Bath, 61 N. H. 67; Carr v. Ashland, 62 N. H. 665. The town may settle the claim if, upon investigation, it shall deem that a proper thing to do, and thus protect itself from unnecessary and useless costs. But if the town declines to settle, there is no reason why the plaintiff, who has innocently underestimated his claim, should not recover his actual damages. His injury, which at first may have seemed slight may prove to be serious. Within the brief period for filing the statement the nature and extent of his injuries may not have become developed. Robin v. Bartlett, qua supra. Time...