52 N.H. 330 | N.H. | 1872
The proof of the payment of damages to the passenger for injuries caused by the same accident was admissible, if the doctrine of Perkins v. Concord Railroad, 44 N. H. 225, and Coffin v. Plymouth, 49 N. H. 173, is sustained.
The proof was received on the ground that it was an admission, more or less strong, that the highway, at the point in question, was defective, and the town in fault for its being so. Such an admission was necessarily to be implied from the acknowledgment and payment of the passenger’s claim, for without the existence of this defect there could have been no claim.
It is urged that the doctrine of the cases cited is unsound, because the payment of the claims was by way of compromise, and therefore not admissible in evidence.
In respect to Coffin v. Plymouth, it did appear that when the selectmen paid Clark, whose wagon was injured at the same accident, one of the selectmen denied the liability of the town ; and it was on this ground that one or more of the court dissented. But in the case before us there was no such denial, nor does anything appear that affords an inference that this payment was matter of compromise. On the contrary, it is the simple case of a claim made, and a yielding to it, and payment by the town. The question, therefore, raised by the counsel does not arise here, and if it did, it would seem to be settled by Coffin v. Plymouth.
The general question here raised is substantially the same as in settlement cases, where the settlement of a person is in question, under* whom the pauper is supposed to derive a settlement; and in such cases, it is well settled in New Hampshire, and elsewhere, that it is competent to prove that the town sought to be charged have supported other* paupers deriving a settlement under the same person.
This is the doctrine of Hopkinton v. Springfield, 12 N. H. 328; Pittsfield v. Barnstead, 40 N. H. 495; Canaan v. Hanover, 47 N. H. 215; and Harpswell v. Phipsburg, 29 Me. 313. In these cases the question is-, whether the pauper had a settlement in the town sought to be charged ; and proof that the town admitted the settlement of the person under whom the pauper claims, by paying for the support of another claiming under the same person, is substantially the same as the admission of the defect in the highway by paying the claim of another person who was injured by it. There are many other illustrations of the same doctrine, as where the question is whether A is jointly liable with B for a debt incurred in a particular business: proof that A has paid to other persons debts contracted in the same business is constantly admitted, as in cases of alleged partnership, agency, and tire like ; — and the case before us stands in principle upon the same footing.
The remaining question respects the instructions given to the jury. They were told that the plaintiff could not recover unless there was fault or negligence on the part of the town, — that is, unless there was a defect or obstruction in the highway, which the town, under all the circumstances shown, ought to have remedied before the accident. So
The other part of the instruction went upon the ground that the fault or want of care of the superintendent of the water-works was the fault or negligence of the town. If it was so, the instructions were right. It is not contended that Holbrook was a public officer, clothed by law with certain powers in respect to these water-works that would bring him within the doctrine of Ball v. Winchester, 32 N. H. 440; and we think that such a view could not be sustained.
The act of July 3, 1861, under which these water-works were established, authorizes the'town to place these works under the direction of a superintendent, or a board of water commissioners, or of both,— their duties to be defined by vote of the town. The powers and authority of the superintendent are not confirmed or defined by law, but by the town ; and he is in no sense a public officer within the meaning ascribed to that term in Ball v. Winchester, but he is the servant and agent of the town, and subject to their control. His act, then, within the scope of his employment, is the act of the town. A master is responsible to third persons for the negligence of his servants, in the course of their employment as such, to the same extent as if the act were his own. Shearman & Red. on Neg., sec. 59, notes and cases; ib. secs. 60 to 67. In Wilson v. Peverly, 2 N. H. 549, it is laid down by Woodbury, J., that a master is liable for wrongs done by his servant in the negligent and unskilful execution of business specially entrusted to him, on the ground that the master should not do an act, or cause it to be done, with such negligence as to injure third persons. The negligence and want of care of the servant may well be considered as the negligence and want of care of the town; and that being so, the question is, whether, if the highway is made defective by the negligence and want of care of the town themselves in digging a ditch in it, the town are not at once liable to persons who are injured by such defect, and whether it is not a defect that ought to have been remedied.
In such a case, the defect, if it be one, is caused by the fault of the town, by neglect and want of care that constitutes a breach of duty, and brings the case within the principle of Hubbard v. Concord, 35 N. H. 68,—that is, it makes a defect in the highway, the existence of which at the time of the accident is due to the fault of the town, the result of a failure to do their duty; and it is totally immaterial whether this failure be the omission to remedy the defect seasonably, or to exercise due care in digging and securing a ditch, in consequence of which fault the ditch becomes at once a defect. In both cases, the defect exists by the fault or breach of duty of the town; and it would be very unreasonable to say, in respect to the defect caused by the town themselves, that they were not liable for injuries happening before there was time to remedy it, — and such is not the doctrine or Hubbard v. Concord.
It is very true that, for acts of the superintendent outside of his duty as servant of the town, the defendants are not liable; and so far, the
Since these views were prepared, I find them to be sustained in Brooks v. Somerville, 106 Mass. 274.
Judgment on the verdict.
