52 A. 926 | N.H. | 1902
If the plaintiff was unavoidably prevented from filing a statement of his injury and claim within ten days from the accident, the issue presented by his petition is whether he should now be permitted to file the same. Permission to file such statement cannot be granted unless "manifest injustice would otherwise be done." P. S., c. 76, s. 9. Evidence sufficient to authorize the submission of the plaintiff's case to the jury will sustain the requisite finding of "manifest injustice." The questions of law or fact which the plaintiff desires to litigate are not ordinarily determined upon the preliminary petition. It is sufficient if it appears that there are important questions which, through accident, mistake, or misfortune, the plaintiff will be unable to try unless the petition is granted. Drew v. Derry, ante, p. 113; Hendry v. North Hampton, ante, p. 26; Welsh v. Franklin,
If, however, it conclusively appears from the admitted facts or the allegations of the petition that the plaintiff has and can have no valid claim against the defendants, it is apparent that there are no questions to be tried. A sufficient petition, therefore, must allege facts which, if found to be true, will constitute the basis of a legal claim.
Prior to the act of 1893 (Laws 1893, c. 59), the location or character of the defect or insufficiency in the highway, complained of as the cause of the injury, was immaterial. Towns were liable to travelers for damages occurring "by reason of any obstruction, defect, insufficiency, or want of repair" which rendered it unsuitable for the travel thereon. P. S., c. 76, s. 1. And a defect or obstruction in a sidewalk might render the highway unsuitable. Hall v. Manchester,
It may be that unevenness of the path caused by projections above the surface would constitute a defect in a culvert, as well as depressions below the highway surface. But the petition does not allege as the cause of the injury any defect, insufficiency, or want of repair of the culvert, or any other cause within the statute, and therefore no error appears in the ruling of the superior court sustaining the demurrer. The only connection alleged between the accident and the culvert is that the broken pipe over which the plaintiff fell was once a part of the culvert. But the ground of liability is not the manner in which repairs were made six months before, but the condition at the time of the injury. The neglect of the surveyor to care for the fragments of pipe is immaterial, except as constituting an existing defect. If the facts warrant the claim made in the brief, that the injury was caused by an obstruction or defect in the covering of the culvert, the petition can be amended. Gitchell v. Andover,
Exception overruled.
All concurred.