Saltmarsh v. Bow

• Decision Date: 22 March 1876
• Parties: Saltmarsh v. Bow.
• Court: New Hampshire Supreme Court

56 N.H. 428

Saltmarsh v. Bow.

Supreme Court of New Hampshire

March 22, 1876

Injuries from defective highways.

If a town suffers the travelled part of a highway to become widened, so as to hold out to the traveller that the whole width is equally suitable for the public travel, it is answerable for damages growing out of defects in the part so widened.

When a judge states to the jury the law applicable to the case, with proper qualifications, and afterwards repeats the general rule without repeating the qualifications, the verdict will not for that cause be set aside. Belknap v. Wendell, 36 N.H 250, affirmed

From MERRIMACK Circuit Court

CASE to recover damages for an injury claimed to have been caused by a defect in a highway in said town.

The existence of the highway was admitted. It runs north and south---through Bow to Hooksett. The defect or obstruction complained of was a stone upon the east side of said highway and near to the shoulder of the road, but in the gutter on that side of the road. This stone was described by the different witnesses as sloping towards or into the highway and as running back to the east some two feet or more, and rising towards the east, so that at the highest point it was, at the time of the accident, as described by the defendants' witnesses, from six to ten inches above the ground around it, and, as described by the plaintiff's witnesses, from twelve to eighteen inches above. The defendants claimed, and their evidence tended to show, that they had prepared a road-bed west of the westerly point of this stone, from eighteen to twenty feet wide, which was well wrought for its whole width, so that teams of all kinds could, if driven with proper care, pass and repass over any part of it with ease and safety; but the whole evidence tended to show that almost the entire travel went upon the east side of the road-bed, so that the east wheel-rut passed near to the point of this stone, and that there were marks of wheels upon it as it sloped down

towards the road. The defendants' counsel, in his argument, claimed that if the jury should find there was a road-bed, well wrought and free from all obstructions and defects, west of this stone, of the width of at least eighteen feet, and in good repair, and that if the plaintiff and the public had chosen to use it it would have been amply sufficient in all respects for the travel passing thereon, this would be all that was required of the town; and that, if the plaintiff or the public, or both, chose to pass on the east side of the road-bed and partly in the gutter, and then voluntarily run so near this stone as to be liable to pass over it and receive injury, under these circumstances the town would not be liable. There was no other request for instructions than this: The defendants' counsel, in the course of the argument, and while addressing the jury, turned to the court and said he should ask for instructions as above claimed by him; but the court did not give them, and the defendants excepted.

The court, among other things, did instruct the jury as follows: If the stone, which was said to be the cause of this accident, was in the gutter, or was beyond the limits of the gutter, and yet was within the limits of the path travelled by the public, and that path was so clearly defined, so plainly marked, that persons passing there, exercising ordinary care and prudence, would understand that that was the travelled path of the highway, they would have the right to pass in it; and if there was any defect, any obstruction, any insufficiency, then the town would be liable,---because, as I have already suggested to you, it was in the power of the town to prevent the public travelling there; and if they suffer the public to travel outside the limits of the highway where it is wrought, but within the limits of the laid-out highway, when they can prevent it,---if they allow the public to travel there and do not prevent it,---it does not lie in their mouths to come in and say that they are not liable for any damages that may arise there. "That, gentlemen, you may take to be the law in this case."

To these instructions the defendants excepted. The jury returned a verdict for the plaintiff, which the defendants moved to set aside.

The charge of the court was taken down by a short-hand reporter, and has been written out in full, and is on file, and may be referred to by either party in the argument.

The questions of law arising on the foregoing case were transferred to this court by STANLEY, J.

Sargent & Chase, for the defendants. Tappan & Albin, for the plaintiff

SMITH J

The instructions to the jury were, in substance, that if the path travelled by the public, within the limits of the highway, was so clearly defined and so plainly marked that persons passing there, and exercising ordinary care and prudence, would understand that it was the travelled path of the highway, they would have the right to

pass in it; and if there was any defect, obstruction, or insufficiency, the town would be liable for injuries occasioned thereby. These instructions were correct. When a town widens the travelled path so as to hold out to the traveller that all parts are equally suitable for public travel, they will be answerable for damages growing out of defects in any part of it. Goodrich v. Colchester, 18 L. R. 468; Cobb v. Standish, 14 Me. 200.

The case is the same if they suffer the same...