Robertson v. Monroe

• Decision Date: 03 January 1922
• Docket Number: No. 1764.,1764.
• Parties: ROBERTSON v. MONROE et al. (two cases).
• Court: New Hampshire Supreme Court

116 A. 92

ROBERTSON

v. MONROE et al. (two cases).

No. 1764.

Supreme Court of New Hampshire. Hillsborough.

Jan. 3, 1922.

[COPYRIGHT MATERIAL OMITTED.]

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

Actions on the case for negligence by Elizabeth A. Robertson and Charles E. Robertson against Fred B. Monroe and others. Verdicts for plaintiffs, and cases transferred on defendants' exceptions. Exceptions overruled.

This is the same action heretofore reported (79 N. H. 336, 109 Atl. 495), and the essential facts as to liability appeared as at the first trial. Evidence of what was done by the defendants in the fall of 1913 was excepted to by the defendants upon the ground that when or how the condition that existed at the time of the accident was created was immaterial. There were also exceptions to the refusal to give requested instructions to the jury and to the closing argument for the plaintiff. These are stated in the opinion.

Robert W. Upton, of Concord, for plaintiffs.

Taggart, Tuttle, Wyman & Starr, of Manchester, and L. E. Wyman, of Manchester, for defendants.

PEASLEE, J. The defendants' exception to the refusal to limit the use of evidence as to how the situation complained of was created in 1913 presents the same question that is involved in one of their requests for instructions to the jury, and is considered in connection therewith.

The requests now relied upon are summarized by counsel as follows: That the selectmen could not be found liable for not providing an approach which the town for which they were acting was not obliged to provide. That the doing of the work as such was distinct from the condition at the time of the injury. That as the permanent repair of a highway must by statute be made under the advice of the state engineer the defendants are not liable if they follow the engineer's advice. That if under the advice of the state engineer the changing of the grade destroyed the approach, neither the town nor the selectmen who did the work were liable.

As far as the first request was applicable to the case, it was included in the instructions given to the jury. They were specifically instructed that the plaintiff could not recover upon any theory that the abutter's rights had been invaded by removing or failing to restore his means of approach. The only theory upon which a verdict of fault upon the defendants' part in relation to what was done in the fall of 1913 could be found under the charge was that in cutting across the driveway, either as a temporary or as a permanent change, they negligently created and left a situation likely to prove dangerous to travelers. The jury were told in terms that if the defendants were free from fault in leaving the highway in the condition they did the plaintiff could not recover. And fault in this connection was fully explained as meaning negligent conduct creating a dangerous situation. The charge assumes throughout that, as far as this plaintiff is concerned, the selectmen had a perfect right to cut off the approach in a reasonable and prudent manner.

Liability or nonliability of the town for the accident is not a test by which to determine the accountability of these defendants. Neither is the alleged rule of law that the town was not under obligation to the abutter material. Injecting these matters into the consideration of the question of liability in this suit would only tend to confuse the jury. The complaint is not for failing to provide an approach, but for leaving what might appear to be an approach in a dangerous condition. The question for the jury was whether there was "a probability that persons having knowledge of the former existence of the driveway or misled by the indications on the abutting land would attempt to cross at this point from the adjoining land to the traveled path." Robertson v. Monroe, 79 N. H. 336, 343, 109 Atl. 495, 499. The case was properly submitted to the jury on this theory.

The next request which is now relied upon, together with the exception to the use of certain evidence, presents the question whether selectmen who negligently create a dangerous situation in a highway are liable under Laws 1893, c. 59, § 1, for injuries to a traveler which are suffered after the selectmen go out of office. Proof that a third party negligently failed to perform a common-law duty to the plaintiff to avert the probable results flowing from the defendants' negligence in creating a dangerous situation is not an answer to this suit.

"It is suggested the adjoining landowner was in fault in not closing or obliterating the driveway or in neglecting to warn the plaintiff. Assuming this to be so, his negligence would not prevent a recovery against others whose negligence was cause for the injury." Robertson v. Monroe, 79 N. H. 336, 343, 109 Atl. 495, 499.

The foregoing statement relates to the neglect of the abutter to care for the safety of those upon his premises. As to neglect to care for the highway, no acts of third parties are here involved. The question whether the intervening negligence of a third party in that respect would be such a break in the chain of causation that the negligent making of the ditch could no longer be treated as a legal cause of the accident does not and cannot arise upon the facts as to this aspect of the case. If there was intervening negligence in not guarding or filling the ditch, it was that of these defendants, and the verdict against them then properly stands upon that ground. If they are liable for this later negligence, it is immaterial whether they are or are not also liable for negligently creating a dangerous situation. If, on the other hand, they were not guilty of any actionable neglect of highway maintenance after the situation was created, then no one was, and the only fault is the original one of digging the ditch. Whatever view is taken of the facts, it remains true that there was no intervening negligence in the care of the highway which could relieve these defendants of a liability they would be under in the absence of such a fault later than their own.

Upon the issue of excluding fault in 1913 from consideration, the defendants could prevail only upon the theory that their liability for that fault ended with the close of their then tenure of office. The argument advanced is that as the selectmen's official powers end at the close of their term, therefore their liability under this statute terminated at the same time. If this position were sound, it might follow that no one would be liable here, although the accident was plainly and directly traceable to the wrong done by the defendants. If, for example, other selectmen had been elected in March, 1914, and the accident had happened before they had opportunity to learn of the situation, the plaintiff would, upon the defendants' theory, be without remedy. If it be said that their liability would continue, but only until their successors had reasonable opportunity to act, then the whole field is open to the plaintiff. Their successors would not be called upon to act until there was reasonable necessity for action. If the jury should conclude that the original situation was negligently created, but that it was not bad enough to call for lights or barriers, or for emergency repairs in the early spring of 1914, then the original liability would continue.

The statutory duty of the defendants to exercise care extended to all those with whom the situation brought them into relation. Garland v. Railroad, 76 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924. This included all travelers whom they ought to have anticipated might be affected by their conduct. It is manifest that the future effect of their present conduct upon others would not be terminated or affected by the fact that at some intermediate time they ceased to be in office. How remotely this relationship shall be traced, how far the chain of causation shall be followed as a matter of legal liability, is with us a question of fact. As a general rule, when the fault to which an injury is traced is one for the creation of which a defendant is responsible, it is no defense for him to show that at the time of injury it was beyond his power to remedy the wrong which he had theretofore done, and which continued to be a source of danger, and in fact resulted in the injury complained of.

Authorities elsewhere treating the question of proximate cause as one of law are not in point here; for in this state the question whether an existing condition, the absence of which would have made an accident impossible, is to be treated as the legal cause of the accident, is one of fact. Ela v. Postal Tel. Cable Co., 71 N. H. 1, 51 Atl. 281, and cases cited; Pritchard v. Boscawen, 78 N. H. 131. 97 Atl. 563, and cases cited.

However the rule may be as to intervening negligent acts, or negligent failures to avoid apparent consequences, as breaking the chain of legal causation, the rule here is entirely clear that when the intervening conduct is lawful, the question of proximate cause is for the jury if reasonable men in the defendants' situation might have anticipated some such train of events as that which ensued. Ela v. Postal Tel. Cable Co., supra.

The liability here invoked is a statutory one, and the language used was manifestly intended to make it as broad and continuing as the chance of injury. The purpose was to substitute a primary liability of the person (official or otherwise) who caused the defect for the previously existing liability of the town. Robertson v. Monroe, supra. There is nothing novel in the imposition of such a burden. Leaving the highway in an unsuitable condition was in effect creating a nuisance. Thomas v. Harrington, 72 N. H. 45, 54, Atl. 285, 65 L. R. A. 742. One who creates a nuisance may be liable at common law for damages resulting therefrom although the injury may have been inflicted after he has parted with both...