Robertson v. Monroe

• Decision Date: 06 January 1920
• Citation: 109 A. 495
• Parties: ROBERTSON v. MONROE et al.
• Court: New Hampshire Supreme Court

109 A. 495

ROBERTSON

v. MONROE et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 6, 1920.

Young, J., dissenting.

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

Action by Elizabeth A. Robertson against Fred B. Monroe and others, resulting in directed verdict for defendants, plaintiff excepts, and case transferred. Judgment for one defendant ordered, and verdicts for the other defendants, including named defendant, set aside.

Case for negligence. The town of Hillsborough raised the money to repair Depot street, and the defendant selectmen had charge of the work. They decided to lower the grade of the street in front of Judge Holman's house something like 18 inches. The sidewalk was originally about 18 inches higher than the traveled part of the street, and after this work was done there was an abrupt drop of from 2 1/2 to 3 feet from the sidewalk to the gutter. There had been two entrances from the street to the Holman property, one at the east, the other at the west of the house; but after the defendants lowered the grade of the street they did not not raise the westerly entrance until the following season. The selectmen had charge of the work, and the defendant Bennett, the highway agent, acted under their direction. These changes were made in the fall of 1913. The plaintiff was injured on a dark evening the following May, in attempting to leave the Holman property by the westerly driveway. She had driven into Holman's yard over the easterly driveway, and left it by the westerly driveway on a former occasion, and did not know that the grade of the street had been lowered, or that the westerly entrance had been discontinued. The defendant Bennett went out of office as highway agent before the plaintiff was injured; the other defendants continued in office as selectmen until after the injury.

Robert W. Upton, of Concord, for plaintiff.

Taggart, Tuttle, Wyman & Starr, of Manchester (L. E. Wyman, of Manchester, orally), for defendants.

PARSONS, C. J. The defendants, who were highway officers of the town of Hillsborough, in doing the work of lowering the grade of a highway in the town left unprotected in a dangerous condition a driveway leading into the highway from land of an adjoining owner. There had been two driveways to the premises so arranged that persons driving in at one entrance would naturally drive out at the other. One driveway was replaced; the other was not, until after the accident, which occurred some six months after the change was made. In the path of this driveway within the highway limits there was, as the highway was left at the time of construction, at the line between the sidewalk and the roadway, an abrupt descent sufficient to render dangerous passage over the driveway in the path used before the change of grade. The plaintiff knew of the double driveway, but did not know of the change made in lowering the grade. She drove onto the premises by the driveway which had been restored, and in driving out over the other received the injury for which she seeks compensation. As the plaintiff was not injured in the progress of the work, she cannot recover because of the failure of the defendants to take care to so carry on their business as not unnecessarily to injure others, which is apparently the ground of possible recovery which is suggested in Downes v. Hopkinton, 67 N. H. 456, 40 Atl. 433, and Brown v. West, 75 N. H. 463, 76 Atl. 169. She was not the adjoining landowner, and if the failure to restore the second driveway was an invasion of the adjoining owner's right, or if by force of the statute forbidding the repair of a highway so as to obstruct the passage to an adjoining house, yard, or private way (P. S. c. 73, § 23) a nuisance was created, no private right of hers has been invaded. The discussion in Waldron v. Berry, 51 N. H. 136, is therefore not in point. Neither are the decisions in Adams v. Richardson, 43 N. H. 212, and Rowe v. Addison, 34 N. H. 306, material. And it is expressly held in Elliott v. Mason, 76 N. H. 229, 81 Atl. 701, 37 L. R. A. (N. S.) 357, that only the adjoining landowner can recover for such a nuisance. On this ground the plaintiff, Elliott, was defeated in his suit against the town. He failed to recover on the ground of injury from a defective highway because the defect complained of was not one of those for which the town was made liable to travelers injured thereby. Elliott v. Mason, supra, 76 N. H. 234, 81 Atl. 701, 37 L. R. A. (N. S.) 357; Laws 1893, c. 59, § 1. For the same reason this plaintiff failed in her traveler's suit against the town. Robertson v. Hillsborough, 78 N. H. 603, 99 Atl. 1069; Leslie v. Keene, 78 N. H. 607, 608, 101 Atl. 661; Wilder v. Concord, 72 N. H. 259, 56 Atl. 193.

The present suit is against the public officers charged with the duty of highway maintenance and repair. The plaintiff brings her suit in reliance upon the public right of highway user. She alleges that the highway was defective through the negligence and carelessness of the defendants, upon whom the duty of highway maintenance was by law imposed, and that as a result of such defect while traveling thereon she received the injury for which she seeks compensation. Her complaint is of the condition of the highway at the time of the injury. "At the annual election each town shall elect, by ballot, one or more, not exceeding three, highway agents, who, under the direction of the selectmen, shall have charge of the construction and repair of all highways and bridges in the town." Laws 1893, c. 29, § 3; Laws 1897, c. 67, § 1; Laws 1913, c. 14, § 1.

"Whatever the division of power between the highway agent and the selectmen may be under this statute, they are with respect to the exercise of their respective highway powers public officers." "The construction and repair of highways legally laid out are governmental acts, and their essential character as such is not changed by legislative action imposing the duty of superintending and doing the work required upon officers selected by the towns or appointed in some other way. If the selectmen of the town are required by the Legislature to superintend the repairs of the highways in the town, they act in that respect as public officers of the state." O'Brien v. Derry, 73 N. H. 198, 199, 60 Atl. 843, 844. Assuming at this point that there was evidence the highway was defective through the negligent performance of the public duty imposed upon the defendants, the fundamental question in the case is whether the defendants can be called upon to answer for such neglect at the suit of a private person.

"The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it properly, is an individual wrong, and may support an individual action for damages." Cooley on Torts, 379. Of the application of this principle to the matter in hand, Judge Cooley says:

"There seems to be a little difficulty in determining whether, where an officer is charged with the duty of making and repairing highways and public bridges, this duty can be regarded as a duty to individuals who may have occasion to use the public way, or whether, on the other hand, it is to be considered a duty to the public only." Id. 399.

It is, however, generally, though not universally, held that at common law the officers upon whom is imposed the performance of the duty of highway maintenance are not answerable to individuals for default in such performance. Bartlett v. Crozier, 17 Johns. (N. Y.) 439, 454, 455, 8 Am. Dec. 428; Daniels v. Hathaway, 65 Vt. 247, 26 Atl. 970, 21 L. R. A. 377; McConnell v. Dewey, 5 Neb. 385; Nagle v. Wakey, 161 Ill. 387, 43 N. E. 1079; Worden v. Witt, 4 Idaho, 404, 39 Pac. 1114, 95 Am. St. Rep. 70.

There are no cases in this state holding that a highway surveyor is liable directly to a traveler for default in the performance of his duty of highway maintenance. The duty of highway maintenance placed on towns is governmental in its nature, and in the exercise of the public right of travel through the negligence of the town in the performance of the imposed duty. Sargent v. Gilford, 66 N. Hi 543, 27 Atl. 306; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302. As the same duty when imposed upon public officers remains governmental in its nature owed to the public and not to individuals, it would seem to plainly follow that the officers upon whom the duty of maintenance was imposed would not be liable to an individual for default in the performance of their public duty. But the Legislature which made towns liable for default in the performance of this imposed governmental duty could impose the like liability upon the officers charged with the execution of the town's duty of maintenance and repair. If this has been done the question of liability at common law need not be determined. The liability imposed upon towns by P. S. c. 76, § 1, for damages happening to a traveler by reason of any obstruction, defect, insufficiency, or want of repair was by the statute of 1803 limited to persons using for travel a particular part of the highway, and it was only for defects, obstruction, or insufficiency in the portions specified that recovery could be had. Wilder v. Concord, 72 N. H. 259, 56 Atl. 193. But after declaring the town liability, the section continues, "but any person or corporation, except municipal corporations, through whose negligence or carelessness any obstruction, defect, insufficiency, or want of repair is caused, shall be liable to any person injured by reason thereof, and the damages may be recovered in an action on the case." Laws 1893, c. 59, §...