Seeton v. Town of Dunbarton

Decision Date13 October 1903
PartiesSEETON v. TOWN OF DUNBARTON.
CourtNew Hampshire Supreme Court

Remick, J., dissenting.

Transferred from Superior Court; Wallace, Judge.

Action by Gertrude E. Seeton against the town of Dunbarton. A nonsuit was ordered at close of plaintiff's evidence, subject to exception. Exception sustained.

The plaintiff's evidence tended to prove the following facts: The place of the accident was a common country road, over which there was considerable travel. A short time before the accident, which occurred June 21, 1901, the road had been repaired with a road machine; the face of the highway being left about 11 feet wide, with the center somewhat crowning and raised above the sides, which sloped to the gutters on either side. On the east side of the road, beginning at a point 12 inches from the east wheel track, the side of the road in a distance of 20 inches sloped or dropped off 18 inches. There was then a perpendicular drop of 2 inches, and then the side was grassed and sloped at an angle of 30 degrees for a few feet, to the lowest spot at that side of the highway. The road machine turned up a stump, and left it in the gutter on the west side of the road, 2 feet west of the west wheel rut. This stump was calculated to frighten horses, and had frightened them on two occasions prior to the plaintiff's injury. The plaintiff was riding over the highway in a meat cart drawn by two horses. The horses were frightened by the stump and jumped suddenly to the right, carrying the right-hand wheels about 2 feet outside of the rut on that side of the road, and over the east side of the highway, just outside of the 2-inch drop in the bank, causing the cart to be overturned and the plaintiff to be thrown out and injured.

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

Albin & Shurtleff, for defendant.

PAR SONS, C. J. It was incumbent upon the plaintiff to explain to the jury how the cart in which she was riding happened to be driven so far from the traveled path as to be overturned, and to satisfy them, if she could, that this occurred without fault on her part. The evidence as to the stump and its horse-frightening capacity tended to sustain this branch of the plaintiff's case. The evidence was competent, and could not be excluded because it tended to prove a defect for which the town was not liable in this action.

It is not claimed that the town is liable for a defect of this character, but it is said the highway should have been railed to render it suitable. As to the liability of a town to a traveler injured because of the unsuitable condition of a highway, caused by the defective railing of a dangerous embankment, the statute of 1893 (Laws 1893, p. 47, c. 59) made no change. Section 1, c. 75, Pub. St. 1901, imposing the duty, was not repealed; and the liability to travelers for breach of such duty under the general provisions of section 1, c. 76, Id., was expressly retained. Wilder v. Concord (N. H.) 56 Atl. 193. Neither did the legislation of 1893 transform what was before a question of fact for the jury into a question of law for the court. Whether the absence of a railiug was a defect, and whether the highway was or not suitable, have always been treated as questions of fact in this jurisdiction. Downes v. Hopkinton, 67 N. H. 456, 40 Atl. 433; Knowlton v., Pittsfield, 62 N. H. 535; Dumas v. Hampton, 58 N. H. 134; Stark v. Lancaster, 57 N. H. 88, 94; Saltmarsh v. Bow, 56 N. H. 428, 431; Ray v. Manchester, 46 N. H. 59, 60, 88 Am. Dec. 192; Palmer v. Portsmouth, 43 N. H. 265; Chamberlain v. Enfield, 43 N. H. 356; Winship v. Enfield, 42 N. H. 197; Halt v. Manchester, 40 N. H. 410, 415; Johnson v. Haverhill, 35 N. H. 74; Carlton v. Bath, 22 N. H. 559.

Whether the embankment is dangerous, as presenting a liability of injury to travelers. If unrailed, whether the possibility of injury to travelers in such case is so great that the highway is rendered unsuitable for the travel thereon by the absence of a rail, and whether reasonable men would make repair by providing a rail, are questions to be determined as inferences of fact from other facts proved. Among the facts material to be considered are the character and amount of travel, the character of the road itself, its width and general construction, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a rail, whether the danger is concealed or obvious, and the extent of the injury likely to occur therefrom. The question is a practical one, which practical men of the county, who use and make roads, are especially fitted to solve. For its solution the evidence furnished by a view is ordinarily of great value. But though the question is one depending upon inferences to be drawn from facts, and is one with which the jury are peculiarly fitted to deal, it is not to be submitted to them if on the evidence there is only one conclusion which could be reached by reasonable men. Gahagan v. Railroad, 70 N. H. 441, 445, 50 Atl. 146, 55 L. R. A. 426. The question, therefore, is, does the case disclose evidence tending to prove facts from which the essential inferences can be made without violating the laws of natural sequence which all men denominate reasonable? Unless such inferences are so plainly unreasonable that it is clear that, with all the information obtainable...

To continue reading

Request your trial
6 cases
  • Clark v. Town of Hampton
    • United States
    • Supreme Court of New Hampshire
    • March 5, 1929
    ...and near the customary line of travel. The question whether such an embankment ought to be railed is plainly one of fact. Seeton v. Dunbarton, 72 N. H. 269, 56 A. 197; Parker v. New Boston, 79 N. H. 54, 104 A. It is claimed that the circumstance of the condition of the road, caused by loose......
  • Cozzi v. Hooksett
    • United States
    • Supreme Court of New Hampshire
    • January 6, 1931
    ...Ahern v. Concord, 82 N. H. 246, 248, 132 A. 570; Prichard v. Town of Boscawen, 78 N. H. 131, 133, 97 A. 563; Seeton v. Dunbarton, 72 N. H. 269, 56 A. 197, and cases Although the statute of highways had its inception in the days of horse-drawn vehicles, its provisions were held to embrace ne......
  • Hendry v. Town of N. Hampton
    • United States
    • Supreme Court of New Hampshire
    • December 31, 1903
    ...there could have been no recovery in Norris v. Haverhill, 65 N. H. 89, 18 Atl. 85; 163 Briefs & Cases, 159; and Seeton v. Dunbarton, 72 N. H. 269, 56 Atl. 197. An able and instructive discussion of the question may be found in Sherwood v. Hamilton, 37 U. C. Q. B. 410, where the conflicting ......
  • Bridgham v. Town of Effingham
    • United States
    • Supreme Court of New Hampshire
    • September 17, 1934
    ...in connection with the obscured slope created a danger in the embankment making the road unsuitable for the travel there. Seeton v. Dunbarton, 72 N. H. 269, 56 A. 197; Parker v. New Boston, 79 N. H. 54, 104 A. 345. The embankment was un-railed, but the defendant asserts no failure of proof ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT