56 A. 197 | N.H. | 1903
Lead Opinion
It was incumbent upon the plaintiff to explain to the jury how the cart in which she was riding happened to be driven so far from the traveled path as to be overturned, and to satisfy them, if she could, that this occurred without fault on her part. The evidence as to the stump and its horse-frightening capacity tended to sustain this branch of the plaintiff's case. The evidence was competent, and could not be excluded because it tended to prove a defect for which the town was not liable in this action.
It is not claimed that the town is liable for a defect of this character, but it is said the highway should have been railed to render it suitable. As to the liability of a town to a traveler injured because of the unsuitable condition of a highway, caused by the defective railing of a dangerous embankment, the statute of 1893 (c. 59) made no change. Section 1, chapter 75, Public Statutes, imposing the duty, was not repealed, and the liability to travelers for breach of such duty under the general provisions of section 1, chapter 76, Public Statutes, was expressly retained. Wilder v. Concord, ante, p. 259. Neither did the legislation of 1893 transform what was before a question of fact for the jury into a question of law for the court. Whether the absence of a railing was a defect, and whether the highway was or not suitable, have always been treated as questions of fact in this jurisdiction. Downes v. Hopkinton,
Whether the embankment is dangerous as presenting a liability of injury to travelers if unrailed, whether the possibility of injury to travelers in such case is so great that the highway is rendered unsuitable for the travel thereon by the absence of a rail, and whether reasonable men would make repair by providing a rail, are questions to be determined as inferences of fact from other facts proved. Among the facts material to be considered are the character and amount of travel, the character of the road itself, its width and general construction, the character and extent of the slope or descent of the bank, the direction of the road at the place, the length of the portion claimed to require a rail, whether the danger is concealed or obvious, and the extent of the injury likely to occur therefrom. The question is a practical one, which practical men of the county who use and make roads are especially fitted to solve. For its solution, the evidence furnished by a view is ordinarily of great value. But though the question is one depending upon inferences to be drawn from facts, and is one with which the jury are peculiarly fitted to deal, it is not to be submitted to them if on the evidence there is only one conclusion which could be reached by reasonable men. Gahagan v. Railroad,
There was evidence that if for any cause the wheels of a carriage were drawn to the right less than two feet from the shoulder of the road, and less than three feet from the traveled path, the carriage would be overturned and injury might reasonably be expected. Upon a crowded city street a slope of that extent and character would clearly be dangerous. Upon a road where there was very little travel it might be unreasonable to consider it so. *272
Between the extreme conditions of very much and very little travel there would be situations where the use of the road required by the travel upon it would be such that a difference of opinion as to its sufficiency if unrailed would be not only reasonable but probable. In the present case the travel is described as "considerable." From this description it is not to be inferred that the evidence disclosed very little use of the road by travelers, nor that the travel was very heavy; but the statement describes a condition of use between those extremes, as to which under all the circumstances reasonable men might differ as to the necessity of a rail to render the highway suitable for such travel as was found to be borne by it. The fact that the road-machine was used in the repair of the road was immaterial. The question relates to the condition as observed by the jury and detailed in the evidence. Whether such condition was produced by the use of plows, shovels, or road-machine is unimportant. If, as might be inferred from the case, the road-machine was used to scrape the shoulder of the road toward the center, the inference would be that the use described had rendered the slope less abrupt and possibly less dangerous.
Attention has been called to several cases in Massachusetts. Harris v. Great Barrington,
Exception sustained.
CHASE and WALKER, JJ., concurred: BINGHAM, J. concurred in the result, holding that there was evidence that the defect complained of constituted a defective or insufficient sluiceway within the meaning of the statute.
Dissenting Opinion
I cannot bring myself to regard the condition of the highway complained of in the present case as a dangerous embankment within the meaning of the statute. This court has held that a dangerous embankment, within the meaning of the statute, is one which reasonably ought to be permanently railed to make the highway safe; that the question is whether, for the repair of the unsuitable condition of the highway, reasonable men would *273
or would not erect a railing, that if the erection of a railing is not the repair reasonably required, — if reasonable men would do something else than erect a secure railing, — it cannot be found that the want of a railing is the cause of injury. Wilder v. Concord, ante, p. 259; Owen v. Derry,
Upon the facts presented, I am of the opinion that the nonsuit was properly ordered.
