Soucy v. City of Manchester

• Decision Date: 24 June 1916
• Citation: 98 A. 518
• Parties: SOUCY v. CITY OF MANCHESTER. NOURY v. SAME.
• Court: New Hampshire Supreme Court

98 A. 518

SOUCY

v. CITY OF MANCHESTER.

NOURY

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

June 24, 1916.

Exceptions from Superior Court, Hillsborough County; Branch, Judge.

Actions by one Soucy and by one Noury against the City of Manchester, tried together. Verdict for plaintiff in each case. Heard on defendants' exception to denials of motions for nonsuits. Exception sustained, and verdict and judgment for defendants.

Albert Terrien and Doyle & Lucier, all of Nashua, for plaintiffs. Charles D. Barnard and Jones, Warren, Wilson & Manning, all of Manchester, for defendants.

PARSONS, C. J. In September, 1913, the plaintiff Soucy was the owner of a building upon Dubuque street in the city of Manchester recently erected by him. In the construction of the cellar wall upon the line of the street the plaintiff, with the permission of the city, excavated within the limits of the sidewalk subsequently filling in against the cellar wall with sand. The wall was not pointed upon the outside, and there was conflict as to whether it was pointed on the inside. Early in September during a heavy shower, water and sand washed through the wall into the cellar. The city had constructed gutters upon Dubuque street and upon Amory, an intersecting street, and catch-basins connecting with sewers, so as to collect the rainwater and carry it off under ground. No claim is made for injury from the shower above mentioned, but September 22, 1913, during a very heavy shower, water and sand in large quantity washed through the cellar wall into the plaintiff's cellar, causing the damage complained of to the building of the plaintiff Soucy and to the goods of his tenant, the plaintiff Noury. The plaintiffs claimed that on both occasions the inflow to the cellar was due to the fact that the catch-basins upon Dubuque street were plugged up so that the water did not flow off through them to the sewers. The defendants claimed the trouble was occasioned by obstruction in the gutters caused by the plaintiff Soucy in erecting his building and in removing the sand from the cellar.

The jury were instructed, without exception or objection, that there was no evidence of negligence in the construction of the sewer system; that there was a total failure of proof that an unsuitable or insufficient sewer was put in. This left as the only ground of recovery negligence of the city in caring for the installation. Both the plaintiffs testified that during the storm of September 22d and the earlier one of the same month the water flowed over, and not down into, the catch-basins from which they inferred the system was plugged as they testified, but there was no evidence as to the reason why this properly constructed system failed to operate. There was evidence of notice to the city of the first washout, and the only ground of negligence in maintenance upon which the case was submitted to the jury was whether the city, having notice of conditions after the first shower, did nothing then to restore the system to working order, i. e., failed to then clean out the catch-basins. Upon this question the defendants' evidence was that after the first complaint was made the workmen of the city made the necessary repair and cleaned out the...