Cofran v. Sanbornton, 56 N.H. 12

Cofran v. Sanbornton

56 N.H. 12 | N.H. | 1875

Lead Opinion

FROM MERRIMACK CIRCUIT COURT. The referee's report does not show, and the referee has not found, that the surveyor, when assisting the plaintiff in making his way through the snowdrift, was in the service of the town, or engaged in the performance of his duties as highway surveyor. I think the evidence tends to show that he was not so engaged. The referee does find that the town was not in fault in permitting the condition of the highway to be such as it was on that morning. The surveyor had made arrangements to make the highway passable, and so informed the plaintiff. The plaintiff, by waiting three quarters of an hour, which is not found by the referee to be an unreasonable time, would have had a practicable road to pass over. The plaintiff was too impatient to wait for this, and the surveyor good-naturedly undertook to help him. The evidence does not tend to show, and the referee has not found, that the surveyor in this act was in the employment of the town at all. If he were so, he was engaged in putting the highway in repair; and until he had completed his job, and, as it were, opened the road for travel, it appears to me that the town could not be guilty of negligence.

Concurrence Opinion

The legal effect of the findings of the referee is, that the plaintiff's injury did not happen by reason of a defect in the highway, which the town ought before that time to have repaired. This being so, it matters not how the accident happened: the town being in no fault, is not liable. Palmer v. Portsmouth, 43 N.H. 265.

Concurrence Opinion

The question here is, Did a defect exist that ought to have been remedied before the accident? Palmer v. Portsmouth, 43 N.H. 265. The referee has found that the town had no notice of the defect, and was guilty of no neglect, unless it is liable for the negligence of the surveyor. The plaintiff knew of the obstruction in the highway, and attempted to pass over it before the surveyor had completed the work of removing the obstruction within what would seem to be a reasonable time. The evidence tends to show that men of ordinary care and prudence would not have attempted to do this at their own risk, under the circumstances. The plaintiff could not try the experiment at the risk of the town, and is not, therefore, entitled to recover. Hubbard v. Concord, 35 N.H. 52.

Judgment on the report for the defendants. *14