Reynolds v. City Of Nashua., 3438.

CourtSupreme Court of New Hampshire
Citation35 A.2d 194
Decision Date02 November 1943
Docket NumberNo. 3438.,3438.


Transferred from Superior Court, Hillsborough County; Connor, Judge.

Case by Benjamin A. Reynolds against the City of Nashua for personal injuries. Defendant's motions for nonsuit and for directed verdict were denied, and verdict was for plaintiff, and the cause was transferred.

Judgment for defendant.

Case, for negligence against a municipal corporation. The action was brought by an employee of the City of Nashua to recover for personal injuries received by him as a result of being partially buried in a trench on Ledge Street in said City while working for the City as a common laborer. He was under the direction and control of one Victor Lefebvre, who was put in charge of the work by the defendant. Trial by jury and verdict for the plaintiff.

The defendant moved for a nonsuit, for a directed verdict and that the verdict be set aside. These motions were denied subject to exception. Transferred by Connor, J.

Ivory C. Eaton, of Nashua, for plaintiff.

Edward J. Lampron, of Nashua, for defendant.

JOHNSTON, Justice.

The Board of Fire Commissioners of the defendant City had requested its Board of Public Works to install hydrants closer to the Ledge Street dump than those already in place, in order that fires at the dump might be more effectively controlled and put out. From the existing hydrant the distance to the dump was some 1,800 feet. The City preferred to use its old hose for fires at the dump and this consisted of fifty-foot lengths. The coupling of these pieces took some time. The City decided to comply with the request of its Fire Commissioners and undertook to install two hydrants, one 446 feet from the existing hydrant and another 1,347 feet nearer the dump. By agreement with the Pennichuck Water Works, a private corporation furnishing water in said City, the latter was to dig the trench and the Water Works to lay the pipe. The dump was used for ashes and refuse collected by the trucks of the Sanitary Department of the City. The use of these additional hydrants was warranted as a fire protection in the vicinity. In addition to the saving of time, there would be less loss of pressure from friction in the hose.

The defendant claims that in digging the trench at the request of its Board of Fire Commissioners for the installation of two additional hydrants so that fires at the City dump could be better controlled, it was acting in a governmental capacity.

The plaintiff does not dispute the principle, settled in New Hampshire, that a municipal corporation engaged in a governmental function is not liable for any negligence of its agents or servants. “No private action, in the absence of a statute giving it, can be maintained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage.” Edgerly v. Concord, 62 N.H. 8, 19, 13 Am.St.Rep. 533.

We are not here concerned with the invasion of private property rights as in Gilman v. Concord, 89 N.H. 182, 195 A. 672, or the creation of a nuisance.

It is generally conceded that the fighting of fires and the elimination of the fire hazard is ordinarily a governmental duty. Edgerly v. Concord, supra; Stevens v. Manchester, 81 N.H. 369, 127 A. 873.

The plaintiff seeks to distinguish the present case on the ground that the City voluntarily undertook the work in question. According to him, it might have refused the request of the Fire Commissioners. He phrases variously this idea of a necessary characteristic of a governmental function: a duty imposed by law; a duty that the municipality did not seek to perform; a duty against which its dissent would be...

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11 cases
  • Merrill v. City of Manchester, 6281
    • United States
    • Supreme Court of New Hampshire
    • November 29, 1974
    ...torts under the same principles applied to private corporations. Edgerly v. Concord, 62 N.H. 8 (1882); Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194 (1943); W. Prosser, Law of Torts § 131, at 977 (4th ed. 'The present legal doctrines which purport to define the area within which the municipal......
  • Gossler v. City of Manchester
    • United States
    • Supreme Court of New Hampshire
    • July 15, 1966
    ...concedes that applying existing law in this jurisdiction the defendant would be entitled to prevail. Reynolds v. Nashua, 93 N.H. 28, 35 A.2d 194; Shea v. Portsmouth, 9, N.H. 22, 94 A.2d 902; Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279; Hermer v. Dover, 106 N.H. 534, 215 A.2d We......
  • Day v. City of Berlin, 4148.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 17, 1946 determined by its character and whether it is mandatory or voluntary is immaterial." Reynolds v. City of Nashua, 93 N.H. 28, 30, 35 A.2d 194, 195. And the character of a governmental function as public or private would seem to depend upon whether it was undertaken primarily for the benef......
  • Opinion of the Justices
    • United States
    • Supreme Court of New Hampshire
    • July 23, 1957
    ...of governmental functions. Shea v. City of Portsmouth, Page 281 98 N.H. 22, 94 A.2d 902; Reynolds v. City of Nashua, 93 N.H. 28, 35 A.2d 194. See Kardulas v. City of Dover, 99 N.H. 359, 360, 111 A.2d 327. Cf. Resnick v. City of Manchester, 99 N.H. 436, 113 A.2d 496; Mitchel v. Dover, 98 N.H......
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