57 N.H. 88 | N.H. | 1876
Lead Opinion
FROM COOS CIRCUIT COURT. The only question to be decided in this case is, whether the nonsuit was rightly ordered, — in other words, whether there was anything for the jury to consider.
The first count alleges generally that the highway was defective and insufficient, c. The second count alleges that the culvert was insufficient, and in each count it is alleged that the accident happened by reason of such insufficiency.
It is true that the culvert was not within the travelled part of the highway proper, but it was a part of a turn-out from the highway connecting with a pass from the highway to the depot. This turn-out had all the appearance of a regular highway, and a great amount of travel is said to have passed over it.
I think, as matter of law, although I have not noticed any case *91 exactly in point, that if the town permitted such a turn-out to exist from the highway to the way over the depot grounds, it was bound to keep in repair so much of such turn-out as was within the limits of the highway as laid out. Coggswell v. Lexington, 4 Cush. 307, seems to be, in principle, an authority for this view.
Whether the town would have a right to prevent travel from its highway to the depot ground, or from the depot ground to the highway, it is not now necessary to inquire. The town did permit it. Travellers, finding, the road thus apparently travelled, would have a right to travel there, and to rely upon finding the road in suitable condition.
This being so, the questions whether the culvert was wide enough or otherwise sufficient, whether the accident would have been avoided had the culvert been sufficient to permit the horse to turn to the right and leave behind her the object of her terror, whether the accident was so proximately occasioned by the insufficient culvert as that the town would be liable, and whether the driver was in the use of sufficient caution, were all emphatically questions for the jury. The distinction between remote and proximate causes has been much discussed in comparatively recent American cases. The rapidity with which fires from locomotives have spread, and the enormous extent of the injury, have brought this matter much into notice. In 3 Parsons on Contracts 178 (6th ed.), the rule is stated as follows: "We have been disposed to think that there is a principle, derivable on the one hand from the general reason and justice of the question, and on the other hand applicable as a test in many cases, and perhaps useful, if not decisive, in all. It is, that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into his consideration." This rule is substantially adopted in A. T. S. F. R. R. Co. v. Stanford, 12 Kansas 354, and Fent v. T. P. W. Railway Co.,
If the rule, as suggested by Professor Parsons, is correct, as I believe it to be, it will follow that the question, whether the damage sustained be the natural and probable consequence of the wrong complained of, will be for the jury. That there was on evidence tending to show that these questions ought to be answered in favor of the plaintiff, the court cannot say as matter of law. As there was evidence for the jury to consider, the nonsuit was improperly ordered.
Judgment must be rendered for the plaintiff according to the provisions in the case. *92
Concurrence Opinion
The question here is, was there any evidence competent to be submitted to the jury, and upon which they might find a verdict for the plaintiff? I am of the opinion that there was.
To balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved, belongs to the jury. Wendell v. Moulton,
In order to maintain this action, it was incumbent on the plaintiff to satisfy the jury that the highway in question was not in suitable condition to accommodate the public travel thereon, by reason of some defect, obstruction, or insufficiency which the town were bound to remedy; and that the plaintiff's bailee, at the time of the happening of the injury complained of, was in the exercise of ordinary care and prudence; or that the want of ordinary care and prudence on his part did not materially and substantially contribute to produce the injury complained of. These were all questions of fact for the jury to determine upon the evidence. Johnson v. Haverhill,
Whether a given object is such a defect as would render the town liable for any injury happening in consequence of its depends upon a variety of facts and circumstances, all tending to furnish an answer to the question, Was the highway at that time and place in a reasonably safe and suitable condition for the customary travel upon it, under all the circumstances attending that particular case?
What would constitute a defect in the principal thoroughfare of a crowded and populous city, might be no defect at all in a highway in a sparsely settled country town. So, too, the question of whether the party injured was in the exercise of ordinary care and prudence, is one peculiarly proper for the determination of the jury. Almost in the nature of the case, evidence of the occurrence of all injury upon the highway cannot be laid before a jury without its showing something as to the care of the sufferer; and the case must be very extraordinary where there is not evidence competent and proper to be submitted to the jury. If there is evidence which the jury may rightfully consider, the question is for their decision "Where there is evidence to be weighed, the question is to be left to the jury, and the court do not attempt to determine its weight." Palmer v. Portsmouth, supra. "It is true, in many cases, that where the facts are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true of that class of cases where the existence of such facts comes in question, rather than where deductions and inferences are to be drawn from the facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that there was no defect, or that proper care had not been used, and that negligence existed. Another, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence and no defect. It is this class of cases, and those akin to it, that the law commits to the decision of a jury. Twelve men, of the average of the community, comprising men of education and men of little education, men of learning and men whose learning only in what they themselves have seen and heard, the merchant, the mechanic, the farmer, the laborer, there sit together, consult, apply their separate experience of the affairs of life to the facts proved, and draw a unanimous conclusion. This average judgment, thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one; that they can draw wiser and safer conclusions from facts proved, or admitted, than can a single judge; and in no class of cases can this practical experience be more easily applied, or properly employed, than in that which we are considering." Railroad v. Stone, 17 Wall. 659.
Whether the highway was defective, was one of the questions in dispute. That there was evidence competent for the jury to consider, from which they might have found a defect, is not open to question. But it is claimed that the defect, if any, was outside of the limits of the travelled path, and that, as the plaintiff's team was not being driven in the direction of the road, the town was not liable. This position, *95
however, is fully answered in Stack v. Portsmouth,
Exceptions sustained.
Concurrence Opinion
Towns are required by statute to keep the highways within their, limits in repair suitable for the travel thereon. Gen. Stats., ch. 69, sec. 1. When an action is brought, under the provisions of this statute, the proper question to be submitted to the jury is, whether the immediate and real cause of the damage to the person injured was the defect or obstruction complained of; or, in the language of the statute, whether the damages happened "by reason of any obstruction, defect, insufficiency, or want of repair, which renders it [the highway] unsuitable for the travel thereon."
The proper inquiry in this case was, whether the want of a suitable culvert in the turn-out leading from the highway to the depot grounds was the prime moving cause of the accident to the plaintiff's team, without the existence of which defect the accident would not have happened; if so, the plaintiff is entitled to recover, and this was a question for the jury. Littleton v. Richardson,
One cause of the accident was the frightening of the plaintiff's horse. The fright of the horse was caused, not by a defect or obstruction in the highway, but by the engine and car of the railway company. Nor was the horse injured by falling into the culvert in the attempt to avoid the engine. It became material, then, to inquire whether he was thrown upon the railway track in attempting to avoid an insufficient culvert; or, in other words, was the culvert so constructed that the highway was not suitable for the travel thereon? If the jury should find that, notwithstanding the fright of the horse, the injury would not have happened but for the defect in the culvert under the turn-out, — that the insufficient culvert was the direct and proximate cause of the accident, — the plaintiff would be entitled to recover, provided, of course, the conduct of his bailee did not contribute to the accident.
It was contended by the defendants' counsel, in the argument, that a town is not bound to furnish a turn-out for a traveller to get upon the highway; that a town is bound to clear its highways of everything that may impede the onward travel, but that every man must provide the means of ingress and egress as he pleases; that a town has only to make its highways suitable for the public travel thereon.
This position cannot be maintained. In Stack v. Portsmouth,
"In determining that, the question is immaterial whether the plaintiff was travelling across the highway or length wise of it. Both modes of use are equally necessary, and there can be no doubt that both are lawful, and, for aught we can see, the duty of the town is the same in respect to both. No authority is cited for any distinction in this respect, nor do we find any. The obligation to keep the highway in a reasonably safe condition is for the benefit of all who have occasion to pass over it, in any direction, for the purposes of business, convenience, or *93 pleasure. Such persons are travellers upon the highway, within the meaning of the statute. They are using it for the ordinary and legitimate purposes for which it was made."
We cannot say, as a matter of law, that here was no evidence to be submitted to the jury upon the question whether the defect in the culvert was the proximate and real cause of the injury to the plaintiff's horse. Whenever the question of remote or proximate cause is raised, it becomes a mixed question of law and fact, to be submitted to the jury under proper instructions. Fent v. Co.,
As this question should have been submitted to the jury, the nonsuit must be set aside, and the plaintiff must have judgment according to the provisions of the reserved case.
