Norms v. Town of Haverhill

• Decision Date: 15 March 1889
• Citation: 65 N.H. 89,18 A. 85
• Parties: NORMS v. TOWN OF HAVERHILL.
• Court: New Hampshire Supreme Court

18 A. 85

65 N.H. 89

NORMS

v. TOWN OF HAVERHILL.

Supreme Court of New Hampshire. Grafton.

March 15, 1889.¹

Exceptions from Grafton county.

Mr Norris sued the town of Haverhill to recover damages for injuries from a defective highway. Judgment for plaintiff, and defendant excepts.

Smith & Sloan and Bingham & Mitchell, for plaintiff. Page & Shurtleff and Aldrich & Remick, for defendant.

BINGHAM, J. The objection is taken that the laying out of the highway was void because no sufficient terminus was specified as a starting point in the petition. To avoid unnecessary expense and delay, objections to the form of a petition for a highway should be made, as a general rule, at the first opportunity. This objection, being to the form of the petition, and not seasonably taken, was waived. Bacheler v. New Hampton, 60 N. H. 207 The defendant claimed at the trial that the plaintiff, on the facts in the case, was not a traveler on the highway at the time of the accident, and requested the court to submit the question to the jury, under proper instructions, which it refused. The request was properly denied, as there was no evidence in the case upon which it was competent for the jury to find that the plaintiff, at the time of the injury, was not a traveler. The court properly inquired of the jury as to their verdict, and the grounds upon which they proceeded, for the purpose of ascertaining whether the case had been properly tried. Dearborn v. Newhall, 63 N. H. 301, 303. Subject to the defendant's exception the plaintiff's attending physician was allowed to testify to complaints of pain made to him after the commencement of this action. The rule is settled in this state that the representations of a sick person of the nature, symptoms, and effects of the malady under which he is laboring at the time are admissible. Taylor v. Railway Co., 48 N. H. 305, 309. If made to a medical attendant they are of greater weight than when made to one who is not. 1 Greenl. Ev. § 102. The fact that the plaintiff had brought his suit when they were made would not render the representations incompetent if he was then ailing, but might detract from their weight. Exceptions overruled.

CARPENTER, J., did not sit. The others concurred.

1 Publication delayed through failure to receive copy.