59 N.H. 78 | N.H. | 1879
The cause of action stated in the declaration is damage happening to the plaintiff, a traveller in a highway, by reason of a defect of the highway, which rendered it unsuitable for the travel thereon. The wrong thus complained of is not the act of frightening the plaintiff's horse in violation of the plaintiff's common law right and the defendants' common law duty, but a violation of the statutory, highway right of a traveller, by a non-performance of the defendants' statutory duty of keeping the highway "in good repair, suitable for the travel thereon." Gen. Laws, c. 74, s. 1; c. 75, s. 1. The wrong which the plaintiff's evidence tended to prove was a movement of the hose in the hands of a fireman, throwing a stream of water suddenly in front of and upon the plaintiff's horse. A stream of water, flowing in a street from a hydrant or other source, may in time become a defect of the street. But the act of frightening a traveller's horse by coasting in the street, or the act of sliding against a traveller, or driving a locomotive against his carriage, is not a defect of the street, within the meaning of the highway law. Ray v. Manchester,
Upon a declaration for the act of frightening the plaintiff's horse, another question would arise. The plaintiff's evidence tended to show that the accident was caused by using the water for a purpose of the fire department, — the purpose of testing the power of the hydrant to protect its neighborhood against fire. The experiment was the proper work of the fire department, like the trial of a steam fire engine, hose cart, or other fire-extinguishing apparatus. Such an experiment might not be judiciously postponed till the neighborhood was on fire. And the authorities agree that a town is not liable for damage done by the fire department. Hafford v. New Bedford, 16 Gray 297; Jewett v. New Haven,
Verdict set aside.
FOSTER and BINGHAM, JJ., did not sit: the others concurred.
