Woodman v. Nottingham

• Decision Date: 01 June 1870
• Citation: 49 N.H. 387
• Parties: WOODMAN v. NOTTINGHAM.
• Court: New Hampshire Supreme Court

49 N.H. 387

WOODMAN v. NOTTINGHAM.

New Hampshire Supreme Court

June 1, 1870

The want of a sufficient railing upon the sides of a bridge or public highway, when necessary for the security of the traveller, constitutes a legal defect for which towns in case of accident will be held liable.

Under our statute on this subject, damages are recoverable for the probable proximate or direct consequences of such defect, where a party has suffered either injury to his person or loss of personal property.

The measure of damages in such cases, will be full indemnity for any and all injuries, occasioned thereby, either to the person or the loss of clothing, or money in the pockets of the person at the time of the accident, as well as the team, which embraces the animals, carriage, or load thereon.

The statute, regulating this subject, does not contemplate exemplary or vindictive damages to the suffering party.

A bailee, having a special property in the property injured, or money lost may recover for the whole value of the property, he holding the value beyond his own interest in trust for the general owner, and the judgment recovered by the bailee may be pleaded in bar to any action, that might afterwards be brought by the general owner for the same property.

CASE, by Ira H. Woodman against town of Nottingham, to recover damages for injuries received in consequence of a defect in a highway in said town. Plaintiff set forth in his declaration that he was injured in his person and in his apparel; that his horses, harnesses and wagon were damaged; and that in being thrown from the wagon into a brook at the time of the injury, he lost over live hundred dollars in money that was in his pocket, which was never recovered. Defendant objected that plaintiff could not recover for any money he might have lost in this action, and objected to all evidence tending to show the loss of the money. But the court admitted the testimony, and instructed the jury, that, if they should find that the plaintiff was entitled to recover anything against the town, they might allow him damages for the amount of money he lost, if the loss was caused by the defect in the highway. To all which the defendant excepted. It appeared that the horses, harnesses and wagon, which the plaintiff was using at the time of the accident and which were injured, belonged to plaintiff's uncle, who purchased and paid for the same two years before, and let the plaintiff have them to use as long as he might wish to use them, and that when done with them, plaintiff was to return them in as good condition as when received; ordinary wear and depreciation excepted. While the plaintiff was thus using this property it was injured, and defendant objected that upon these facts plaintiff could not recover in this suit for any injury to this property; but the court admitted the evidence and instructed the jury that if the plaintiff was entitled to recover anything against the town, they might allow him damages for the full amount of injury done to the horses, harnesses and wagon. To which defendant excepted. There was evidence tending to show that some $494 of the money which plaintiff claimed to have lost, had been paid to him the day before, for third persons, but the evidence also tended to, show that he was a common carrier and received this money as such; or that he was the authorized agent of the parties to whom the money was due to receive it for them, and that this fact was known to those who paid him the money. The court instructed the jury that if they found the defendant liable for any of the money, they might give damages for the whole amount he lost. To which instructions defendant excepted.

M. C. Tuttle was a witness for the defendant, who saw the money in the plaintiff's pocket-book, just before the accident, and when asked on cross-examination, how much money he thought there was of it, judging from the size of the pile, he said there might have been $150 or $200 of it. For the purpose of contradicting this witness, the plaintiff introduced a witness who was allowed to testify, subject to defendant's exception, that said Tuttle on a certain occasion, said to him, that judging from the pile of money which plaintiff had on the occasion referred to, there must have been as much as $500 of it, if he had no bill larger than a $5 bill.

The court instructed the jury that they might give exemplary damages, if in their judgment the circumstances warranted it. To which defendant excepted. The defect in the highway complained of, was the want of a railing on the side of a bridge, which crossed said highway, in consequence of which, it was alleged, that plaintiff, who was crossing said bridge in the night, ran off the side of the bridge and was injured. Evidence as to the darkness of the night, was conflicting.

The defendant requested the court to instruct the jury, that if the night was so dark that the plaintiff could not see the road, and he was driving without a light, or other means of distinguishing the road, he was not in the exercise of due care and caution. Also, that if the plaintiff knew of the defect in the bridge, it was negligence in him to attempt to cross it in the night, when it was so dark that he could not see the way. Also, that a party driving a horse team upon a highway when it is so dark he cannot see the way, does so at his peril, unless he provides himself with a light or some means cf distinguishing the road. Also, that towns are not bound by law to construct their highways in such a manner as to be safe for persons to drive horse teams thereon, without a light or some means of distinguishing the way, when it is so dark that they cannot see the road. Which the court declined to do, and defendant excepted.

It appeared that the plaintiff was well acquainted with the road and bridge at the place of the accident, and had driven the same team over this road some four times a week for one or two years before the accident.

And the court instructed the jury that the question was, whether or not the plaintiff was in the exercise of ordinary care and prudence in driving over the bridge, under all the circumstances of the case; that if the night was so dark that a reasonably prudent man would not have undertaken to go over the bridge without a light, he being as well acquainted with the condition of the road and the bridge, as the plaintiff was, then the plaintiff would be in fault, and could not recover. But, if they should find that the plaintiff was, considering the darkness of the night, and his acquaintance with the way and all the attendant circumstances, in the exercise of ordinary care and caution, and his injuries and damages were caused by a defect in the highway, then the plaintiff might recover.

The court also requested the jury if they found tor the plaintiff, to state the several items, of which their general verdict should be made up. The jury returned a verdict for plaintiff for $678, which they certified was made up as follows:

  For damages in plaintiff's person and clothing,  $13 00  For damages, to horses, harnesses and wagon,  60 00  For whole amount of money lost,  505 00  For exemplary damages, 100 00   $678 00 

Which verdict the defendant moves to set aside.

The questions of law were reserved.

Small & Wiggin, for defendant.

1. The liability of the defendant is created solely by statute. Eastman v. Meredith, 36 N. H. 284; Otis v. Strafford, 10 N. H. 352; Farnum v. Concord, 2 N. H. 392; Griffin v. Sanbornton, 44 N. H. 246; Mower v. Leicester, 9 Mass. 250; Harwood v. The City of Lowell, 4 Cush. 310.

They critically examined the meaning and construction of the statute law on this subject, and quoted in argument: Chap. 69 § 1; Burnham v. Stevens, 33 N. H. 247; Ball v. Winchester, 32 N. H. 435.

They contended that the statute should be confined to the recovery of damages for personal bodily injuries only and while the statute specifies team or carriage, towns should not be held liable for damages to other property not named. Therefore, there should be no recovery for the money which plaintiff lost. In support of this position, quoted: 1 Kent Com. 462; Wood v. Adams, 35 N. H. 32; Harwood v. Lowell, ante; Ball v. Winchester, ante.

2. Upon the question of bailment, the counsel referred to Squire v. Hollenbach, 9 Pick. 552, and to Caswell v. Howard, 16 Pick. 562, and to Brown v. Waterman, 10 Cush. 117.

3. That the rule, that allowed the jury to give exemplary damages, by way of punishment or example, could not be supported by sound legal principle, and does not in its practical operation promote justice. It practically gives the jury a license to mulct the defendant in damages to any extent, whenever the circumstances of the case are such as to excite sympathy for the plaintiff or prejudice against the defendant. The right of the plaintiff in civil suits for a tort, is to recover compensation for the injury he has suffered. If his injury is aggravated by the criminal act or neglect of the defendant, that should be considered in estimating the plaintiff's actual damage, but damages awarded not to compensate for the Injury, but by way of example are awarded really as a punishment for a wrong to the public, for what is, or should be, if the verdict be a just one, punishable as a crime. On this point the case Austin & ux. v. Wilson & ux. is quoted, 4 Cush. 272. The language of our statute on this subject did not admit of such a construction as would render a town liable for exemplary damages. The cases Whipple v. Walpole, 10 N. H. 130, and Wheeler v. Troy, 20 N. H. 77 were commented on as unsound.

Hatch, for plaintiff.

I. The statute includes and justifies the recovery of all the damages claimed by the plaintiff. 1. This is the natural and reasonable construction of the words of the statute. "Damage which shall happen to any person" includes all injuries to property. The words "team or carriage" are inartificially used to explain and specify some of the...