Sargent v. Town of Alton

• Decision Date: 29 April 1960
• Citation: 102 N.H. 476,160 A.2d 345
• Court: New Hampshire Supreme Court
• Parties: Irville A. SARGENT v. TOWN OF ALTON.

Page 345

160 A.2d 345

102 N.H. 476

Irville A. SARGENT v. TOWN OF ALTON.

Supreme Court of New Hampshire.

Argued April 6, 1960.

Decided April 29, 1960.

Robert D. Branch, Concord, for plaintiff.

Nighswander, Lord & Bownes, Hugh H. Bownes, Laconia, for defendant.

BLANDIN, Justice.

The main issue here is raised by the defendant's exceptions to the denial of its motions for a nonsuit and directed verdict. In passing on this, we must consider the evidence most favorable to the plaintiff (Leonard v. Manchester, 96 N.H. 115, 70 A.2d 915), and if reasonable persons could reach the result which the jury did, in the absence of error on other grounds, the verdict must stand. Chase v. Draper Company, 95 N.H. 483, 66 A.2d 588.

The plaintiff testified that on April 15, 1955, he went to inspect his cottage and found by examining the town's shut-off valve in the culvert in front of his cottage that the water supply had not been turned on. When he left the premises this valve was closed. He did not close the faucets in his cottage or replace the traps and drain plugs which he had removed the previous fall. He next visited his cottage on April 19, 1955, and found water pouring out of his pipes through the cottage. Thereupon he went down to the town shut-off valve at the street, and finding it open, closed it. He immediately got in touch with one of the town water commissioners, Anderson, who shortly thereafter appeared at the plaintiff's cottage with another commissioner named Beck.

In the course of their conversation, the plaintiff claims one of the commissioners stated that the driver of the truck who, with the superintendent went around checking the summer line after it was turned on, must have opened the shut-off valve to the plaintiff's cottage instead of closing it.

Although his testimony was vigorously refuted by Card, the superintendent of the water works, he testified that the valve was under the sole control and supervision of the town. There was evidence that it was recessed in a culvert partly hidden by leaves and dirt and not apparent to anyone unacquainted with its location. The record is barren of testimony that any outside person touched the valve or had any reason to do so. In the circumstances, the jury may properly have considered the lack of such evidence significant. See LaMontagne v. LaMontagne, 100 N.H. 237, 238-239, 122 A.2d 920.

In summary, the plaintiff testified that the valve was closed on April 15, four days before the damage was discovered and that he found it open on the 19th. In the interim, insofar as the record discloses, no one beside town employees had any reason to touch the valve. This evidence, together with the statement of a commissioner that a town employee must have opened it, raised an issue for the jury to determine who opened the shut-off valve. Any conflicts in the testimony were for them to resolve.

The jury could properly find that the valve was opened by a town employee and that this conduct was negligent since, so far as appears the employee did not know...