FROM GRAFTON CIRCUIT COURT.
In Hardy v. Keene, 52 N.H. 370, it was held to be for
the jury, under proper instructions, to say whether a person who has met with an injury was travelling upon the highway, within the meaning of Gen. Stats. ch. 69, sec. 1. The referee finds that the plaintiff's son was not a traveller travelling upon the highway, within the meaning of that statute. The plaintiff insists that this finding was wrong, and that the court should hold, as matter of law, upon the facts stated, that the plaintiff's son was a traveller, c., and so that the plaintiff was in the legal use of the highway by his horse and wagon at the time of the accident. I do not think this contention can be sustained. If there was any evidence having a legal tendency to show this fact to be as the plaintiff claims, then the referee has found against him. But, I must say, it seems to me there was no such evidence. If there was, it follows, so far as I can see, that the statute may have such interpretation as will impose upon towns the obligation to keep their roads in a condition to be safe for the passage of horses harnessed into carriages, unattended by any human being to guide and control them. At all events, the referee has found this fact against the plaintiff, and I think the case shows no ground upon which that finding should be disturbed.
Without undertaking now to define exactly what is meant by the terms "travelling upon a highway or bridge thereon" — Gen. Stats., ch. 69, sec. 1, — it seems to me that the facts reported by the referee tend very strongly to show that in this case the plaintiff's agent was not so travelling. The horse appears to have been hitched so as to be standing partly, or wholly, out of the travelled path, and the carriage appears to have been standing across the highway, so as not only not to be moving itself, but to be in danger of obstructing others. The driver had made the horse as comfortable as he could for a long stay, had blocked the wheels of the wagon so as to prevent its motion, and left the horse and wagon to take care of themselves, and was intending to wait there a very considerable time. All this appears to me to be very strong evidence tending to show that he was not then travelling upon the highway; and the referee having found so, in accordance with this evidence, I can see no ground for disturbing his conclusion.
SMITH, J., concurred.
Judgment on the report for the defendant.