Wilson v. Town of Barnstead

• Decision Date: 04 December 1906
• Citation: 74 N.H. 78,65 A. 298
• Parties: WILSON v. TOWN OF BARNSTEAD.
• Court: New Hampshire Supreme Court

65 A. 298

74 N.H. 78

WILSON

v. TOWN OF BARNSTEAD.

Supreme Court of New Hampshire. Belknap.

Dec. 4, 1906.

Transferred from Superior Court; Chamberlin, Judge.

Action by Lydia M. Wilson against the town of Barnstead for injuries to plaintiff resulting from her being thrown from a wagon by reason of a defect in the highway bridge. A verdict was rendered for plaintiff and the case was transferred to the Supreme Court on exceptions. Overruled.

The plaintiff's evidence tended to prove that the bridge is constructed of planks laid upon iron girders, the easterly ends of which rest upon an abutment 10 feet in height, built of split stone laid in cement. The stones constituting the base of the abutment are 5 or 6 feet long and are laid at right angles with the stream, the ends projecting toward the thread of the stream about a foot more than the face of the abutment. The stones above the base are laid so as to form a perpendicular face toward the stream, and, excepting the binding stones, extend backward less and less as the top of the abutment is approached. There are occasional binding stones 6 feet long, laid at right angles with the stream, one end being flush with the face of the abutment. There are stone headers on the top of the abutment, 7 to 19 inches wide, the inside surfaces of which are 14 inches back from the face of the abutment. Cobblestones, placed by hand, extend backward from the split stone for a distance of 6 feet and upward to within about a foot of the surface of the roadway. For a distance of about 6 feet further there are cobblestones which were dumped there, and which were designed to protect the split stone structure and render it secure. Such filling is commonly used in bridge building. Above the cobblestones there is sand and hardpan. The planks extend to the edge of the headers, their upper surface's being 1 1/4 inches lower than the upper surfaces of the headers. The header over which the plaintiff's wagon passed was 19 inches wide, and the surface of the roadway for about 4 1/2 feet from its easterly edge gradually sloped downward until it was 5 1/4 inches lower than the plane of the upper surface of the header, extended in that direction on a level. From this point the surface of the roadway gradually sloped upward until it reached the level plane last mentioned, at a distance of about 5 feet from its lowest point. This depression extended over about 12 feet in width of the roadway and was probably caused by the wear of passing travel. There is a wing wall extending from the abutment northerly about 10 feet, at an angle with the bridge, and a wall extending from the abutment southerly several feet on a line with the face of the abutment. The difference in the levels of the planking and the headers and the above-described depression constituted the defect which the plaintiff says caused her injury. The defendants moved for a nonsuit at the close of the plaintiff's testimony, and for an order of judgment in their favor at the close of all the testimony, on the ground that the plaintiff's injury was received on the highway instead of on the bridge, and that the alleged defect was not itself caused by any defect in the bridge or its permanent structure. They also moved for an instruction to the jury, in substance, that the abutment is a part of the bridge, but that the cobblestones and filling immediately back of it are not a part of the bridge. These motions were severally denied subject to the defendants' exceptions. After instructing the jury that the defendants were not liable unless the plaintiff's injury was caused by a defect in the bridge, and after...