Richmond v. Town of Bethlehem

• Decision Date: 01 October 1918
• Citation: 104 A. 773
• Parties: RICHMOND v. TOWN OF BETHLEHEM.
• Court: New Hampshire Supreme Court

104 A. 773

RICHMOND

v. TOWN OF BETHLEHEM.

Supreme Court of New Hampshire. Grafton.

Oct. 1, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Traveler on Highway.]

Transferred from Superior Court, Grafton County; Kivel, Judge.

Action by Edwin F. Richmond, administrator, against the Town of Bethlehem. Verdict for plaintiff, and defendant brings exceptions. Transferred from superior court. Exceptions overruled.

Case for negligence. Trial by jury, and verdict for the plaintiff. The plaintiff's intestate was driving in his automobile upon the highway of the defendant between Littleton and Whitefield, when in order to avoid an obstacle in the road he ran his automobile into a ditch on the north side of the road, and, coming out of that, the automobile went across the road and fell over an unrailed embankment on the south side of the highway, and he was killed. An exception which appears in the opinion was taken by the defendant to the refusal of the court to give requested instructions.

Edward J. Cummings, of Littleton, and Martin & Howe, of Concord, for plaintiff.

Harry Bingham, of Littleton, and Drew, Shurtleff, Morris & Oakes, of Lancaster, for defendant.

PLUMMER, J. The following requests for instructions, except so far as included in the charge, were denied, subject to the defendant's exception:

(2) In considering the question of the liability of the town for not railing the highway at the place of the accident, the question is not whether a railing would have rendered the highway safe and prevented the accident, but whether repair of that character was reasonably required.

(4) Towns are not bound to maintain railings that will resist, without breaking, the force of an automobile weighing 3,000 pounds going at a rate of 15 or 20 miles an hour.

(6) If you find that a railing which would have made the highway reasonably safe for travel thereon would not have prevented the injury, then the plaintiff cannot recover, because the lack of such a railing was not the proximate cause of the injury.

(7) An automobile is not a carriage, within the meaning of the statute making towns liable for injuries to "any person, his team or carriage, traveling upon a bridge, culvert or sluiceway, or dangerous embankments and defective railings upon a highway."

(8) Public roads are intended for ordinary travel; if they meet the requirements which their ordinary use demands, when used by travelers on foot and with teams and carriages, the town has performed its legal duty under the law, and cannot be made answerable in damages for extraordinary accidents occurring on them.

The second, sixth, and eighth requests were covered in the charge. The court told the jury several times in different phraseology that the defendant was not liable unless the unrailed embankment was one which reasonably ought to have been railed, and that reasonable men would have railed. It was made clear that the plaintiff could not recover unless the absence of the railing was the cause of the accident; and the jury must have understood from the language of the court that the defendant's liability was limited to maintaining at the place of the accident the highway reasonably suitable for the ordinary travel thereon, for that was distinctly pointed out. These requests for instructions being substantially included in the charge, the exception to their denial cannot be sustained. The court was not required to use the specific language employed by the defendant in its requests. Wheeler v. Railway, 70 N. H. 607, 615, 50 Atl. 103, 54 L. R. A. 955; Walker v. Railroad, 71 N. H. 271, 273, 51 Atl. 918; Bond v. Bean, 72 N. H. 444, 57 Atl. 340, 101 Am. St. Rep. 686; Kasjeta v. Nashua Mfg. Co., 73 N. H. 22, 25, 58 Atl. 874; Marcotte v. Maynard Shoe Co., 76 N. H. 507, 513, 85 Atl. 284.

The evidence does not support the statement made in the fourth request. It does not appear that the car was going 15 or 20 miles an hour when it fell down the embankment. The testimony is that when the car left the road it was going not more than 20 miles an hour. This apparently refers to the time when the car went into the ditch on the north side of the road. It ran in the ditch a short distance, and to bring the car out of it the deceased had to put on the power; then it went across the road and over the. embankment; but it does not appear at what rate of speed the car was then going, and an instruction based upon...