Seeton v. Town of Dunbarton

• Decision Date: 03 January 1905
• Citation: 73 N.H. 134,59 A. 944
• Parties: SEETON v. TOWN OF DUNBARTON.
• Court: New Hampshire Supreme Court

59 A. 944

73 N.H. 134

SEETON

v. TOWN OF DUNBARTON.

Supreme Court of New Hampshire. Merrimack.

Jan. 3, 1905.

Transferred from Superior Court; Peaslee, Judge.

Action by Gertrude Seeton against the town of Dunbarton. A verdict was rendered in favor of plaintiff, and the case was transferred to the Supreme Court. Affirmed.

For opinion on prior appeal, see 72 N. H. 269, 56 Atl. 197.

The Jury had a view of the premises. At the defendants' request, members of the panel measured what they considered to be the part of the road it was safe to travel upon, and found it to be 12 feet wide, and that 11 feet in width was the wrought portion of the road, free from grass and from marked unevenness. At that time there was a drop of 8 inches at a point 20 inches east of the shoulder of the road, and the slope continued at a slightly smaller angle for 2 feet farther. Beyond that there was a slope of about 15 deg. for 6 or 8 feet. The ground then rises slightly for 8 feet, to a stone wall, and beyond the wall falls off at an angle of some 30 deg. On the west side of the road the ditch is 22 inches below the shoulder of the road, and the descent is more abrupt than on the east side. The embankment on the east side is about 50 feet long. There was considerable travel over the highway. Witnesses called by the plaintiff testified that shortly after the accident they made measurements, and found that the road was then 11 feet wide from the west shoulder to the east wheel track of the cart, where it tipped over; that the slope began a foot east of the wheel rut; and that the ground fell off 18 inches in a horizontal distance of 20 inches. They also testified that the 11 feet was all within the wrought portion of the highway. There was evidence that the road had flattened and broadened since the accident. It was admitted that no repairs had been made. There was no evidence, either from witnesses or the view, that the defect could not have been repaired by some other method than the erection of a railing. The defendants moved for a nonsuit on the ground that there was no evidence of a dangerous embankment defectively railed. The motion was denied, subject to exception. The plaintiff's injury consisted of a dislocation of the elbow. Her two attending physicians diagnosed the injury as "a fracture above the elbow and one below," and treated her accordingly until the condition of the disengaged joint was such that the removal of a large part of it was required, to give any motion of the elbow. This left the arm without muscular control of the movement of that joint. Other physicians testified that the nature of the injury should have been discovered at once. The defendants excepted to an instruction that this would not relieve the town unless it appeared that the plaintiff was negligent in employing the physicians. In his closing argument, counsel for the plaintiff spoke of the road as "too high, too rounding, and too narrow," and said: "They might have made it safe by widening it out generally. * * * They could have made a place there wide enough, so that a horse shying out two feet wouldn't have gone over it, and a team would have gone safely over it if the road was all that wider. But it wasn't." To these remarks the defendants excepted. No exception was taken to the charge to the jury.

Taggart, Tuttle, Burroughs & Wyman and Martin & Howe, for plaintiff.

Albin & Shurtleff, for defendants.

WALKER, J. The defendants' motion for a nonsuit was properly denied, unless it appears from the case that there was no sufficient evidence from which the jury could find that there was a dangerous, unrailed embankment in the highway, which was the proximate cause of the plaintiff's injury. Upon this point the defendants argue that the decision of the case upon its former transfer (72 N. H. 269, 56 Atl. 197) cannot be regarded as a conclusive authority in favor of the plaintiff now, because, as it is said, the evidence...