Pritchard v. Town of Boscawen

• Decision Date: 07 March 1916
• Docket Number: No. 1334.,1334.
• Citation: 97 A. 563,78 N.H. 131
• Parties: PRITCHARD v. TOWN OF BOSCAWEN.
• Court: New Hampshire Supreme Court

97 A. 563

78 N.H. 131

PRITCHARD

v. TOWN OF BOSCAWEN.

No. 1334.

Supreme Court of New Hampshire. Merrimack.

March 7, 1916.

Exceptions from Superior Court, Merrimack County; Chamberlin, Judge.

Petition for leave to file statement of personal injuries by Martha A. Pritchard against the Town of Boscawen. To granting of the petition, defendant excepts. Exception overruled.

Petition for leave to file a statement of personal injuries under the statute. The court found that the plaintiff was unavoidably prevented from filing her claim within the time prescribed by the statute, and that manifest injustice would be done unless she is now permitted to file the same. The court granted her petition, and the defendant excepted, upon the ground that the evidence did not warrant the above finding. It was not disputed that the plaintiff, some 67 years of age, on the morning of February 25, 1915, while walking in the "horse track" of a highway in the defendant town, which was very icy, slipped and fell over an unrailed embankment and received serious injuries. Other facts appear in the opinion.

John M. Stark, of Concord, and Robert W. Upton, of Concord, for plaintiff. Willis G. Buxton, of Penacook, and Martin & Howe, of Concord, for defendant.

WALKER, J. The question raised by the defendant's exception is whether the evidence is sufficient to support the finding of the superior court that manifest injustice would be done unless the plaintiff is permitted to file her claim against the defendant for the injuries she suffered. P. S. c. 76, § 9. If it appeared that she could have no recoverable claim therefor, it would necessarily follow that a denial of her petition would not result in manifest injustice. Owen v. Derry; 71 N. H. 405, 52 Atl. 926. But such denial is not ordinarily ordered, unless it conclusively appears from the admitted facts or the allegations of the petition that the plaintiff can have no valid claim. Hendry v. North Hampton, 71 N. H. 26, 51 Atl. 283; Knight v. Haverhill, 77 N. H. 487, 93 Atl. 663; Welsh v. Franklin, 70 N. H. 491, 48 Atl. 1102.

It is not contended that the evidence was insufficient to warrant a finding that the embankment was a dangerous one defectively railed within the meaning of the statute giving highway travelers an action against towns for injuries suffered in consequence of such embankments. Laws 1893, c. 59, § 1. But it is argued by the defendant that the proximate cause of the plaintiff's injuries was the icy condition of the highway, for which the town is not liable, and that if that condition had not existed she would not have fallen over the embankment. It may be conceded that the first cause of her falling was the difficulty of traveling with entire safety over the ice. But the test of the defendant's liability in such cases is not found by ascertaining the first cause or occasion leading up to the injury, but by considering whether the injury was the natural and probable result of the defendant's fault in omitting to do what ordinarily prudent men would have done in his Situation to prevent such injury. An extended discussion of this subject would not be useful in view of the numerous decisions in this state in support of that doctrine. Ela v. Cable Company, 71 N. H. 1, 51 Atl. 281; Hendry v. North Hampton, 71 N. H. 26, 51 Atl. 283; Id., 72 N. H. 351, 56 Atl. 922, 64 L. R. A. 70, 101 Am. St. Rep. 681; Stevens v. Company, 73 N. H. 159, 173, 174, 60 Atl. 848, 70 L. R. A. 119; Harriman v. Moore, 74 N. H. 277, 281, 67 Atl. 225; Stark v. Lancaster, 57 N. H. 88; Clark v. Barrington, 41 N. H. 44, 50; Winship v. Enfield, 42 N. H 197, 214, 215; Merrill v. Claremont, 58 N. H. 468. The unrailed embankment may have been the proximate cause of the plaintiff's injury. Whether it was or not is a question of fact for the jury to determine. The finding for the plaintiff upon this point is amply supported by the evidence reported. It might be...