Shea v. City of Manchester

• Decision Date: 06 December 1938
• Citation: 3 A.2d 103
• Parties: SHEA v. CITY OF MANCHESTER (two cases).
• Court: New Hampshire Supreme Court

3 A.2d 103

SHEA

v. CITY OF MANCHESTER (two cases).

Supreme Court of New Hampshire. Hillsborough.

Dec. 6, 1938.

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

Two actions on the case, the one by Mary E. Shea against the City of Manchester and the other by Jeremiah P. Shea against the City of Manchester, tried together by jury, to recover for personal injuries to Mary E. Shea sustained when she tripped over cap of water shut-off pipe located near the edge of the sidewalk. Verdicts for both plaintiffs, defendant's motions for nonsuits and directed verdicts were denied, subject to exceptions, and the cases were transferred.

Judgments on the verdicts.

Two actions of case, for negligence, tried together by jury with verdicts for both plaintiffs. The first action is brought to recover for personal injuries sustained by Mary E. Shea, hereinafter called the plaintiff, when she fell over the cap of a water shut-off pipe located near the edge of the sidewalk on Colby Street in Manchester. This cap was one of many similar caps installed throughout the city as a part of the defendant's system of waterworks. When properly adjusted, these caps were approximately flush with the sidewalk. The other action is brought by the plaintiff's husband to recover the loss occasioned him by reason of the accident.

Motions for nonsuits and directed verdicts were denied subject to the defendant's exceptions. The defendant also excepted to the refusal of the Court to set aside the verdicts as contrary to the law and the evidence and the weight of the evidence. Further facts are stated in the opinion.

Sullivan & Sullivan, of Manchester (Thomas E. Dolan, of Manchester, orally), for plaintiffs.

William H. Craig and J. Francis Roche, both of Manchester, for defendant.

MARBLE, Justice.

Counsel for the defendant concede that the city of Manchester in furnishing water to its inhabitants at established rates acts in a private, proprietary capacity and may therefore be held liable for an injury caused by the negligent maintenance of its water system. See Douglas v. Hollis 86 N.H. 578, 580, 172 A. 433, and cases cited. The accident occurred on the afternoon of June 5, 1936, and the cap over which the plaintiff fell had worked up some three inches above the level of the sidewalk through the action of the frost that spring.

Since this situation was created by weather conditions and since there is no evidence that the defendant knew that the cap had risen appreciably, counsel invoke the rule of Hickey v. Berlin, 78 N.H. 69 71, 72, 96 A. 295, and suggest that this dangerous condition had not existed long enough for the defendant, in the exercise of ordinary care, to have discovered it.

The evidence does not demand any such conclusion but, even if it did, the defendant would not be entitled to a directed verdict. The emergency man for the waterworks testified that during a period of five years his attention...