The duty of towns, in this State, to build and keep in repair roads within their limits, has long been established. The most ancient provincial statutes on the subject seem rather to recognize than to create that
The statute of February 27,1786, repealing all laws before enacted on the subject of highways, gives the remedy to individuals injured through defects in highways, in nearly the same phrase with the Revised Statutes, ch. 57.
The statute of June 17, 1807, prescribes the manner in which fines shall be appropriated that may be imposed upon towns for neglecting to repair their highways, but no statute earlier than the Revised Statutes, ch. 53, expressly authorizes indictment or information, or any other public proceeding against towns for such neglect.
These facts are adverted to as having a tendency to show that, by immemorial custom, and independently of any statute that has been preserved, the towns in this State have been held liable to keep in repair the highways within their limits, and that for neglect of that duty common law remedies, both of a public and a private character, have existed, and those of a public character, at least, put in force from a very early period.
It was said, indeed, in Farnum v. Concord, 2 N. H. 293, that no action lies at common law against towns for damages sustained through defects in highways. But that was ” said upon the authority of the cases there cited. That of Mower v. Leicester, 9 Mass. 247, was decided upon statutes of that commonwealth materially differing from those of this State; and Russell v. The Men of Devon,
We are inclined, therefore, to the opinion that the general maxim of the common law, that he who is specially damaged by the breach of a duty on the pai’t of another shall have his remedy by action, is properly applicable to the case of one who has received an injury through the neglect of a town to repair its roads. The case of Whipple v. Walpole, 10 N. H. 130, in deciding that exemplary damages might be given where there was gross neglect in such eases, proceeded upon this ground, and is an authority in point. The right of the party to recover in that case was not limited to the precise amount of damage done to his “ team or carriage,” but the ordinary legal consequences of gross neglect were held to attach to the delinquent town.
It remains, therefore, only to apply to the facts of the case before us that other well established principle, which enables the husband to sue for and recover damages for injuries done to the wife, by which he has been deprived of her society and services, and put to pains and expense in her cure. Com. Dig., Baron & Feme, W.
The conclusion therefore is, that the jury were correctly instructed, the objection of the defendant was not well founded, and that judgment should be rendered upon the verdict.
he motion for a new trial, founded upon the discovery of new or further evidence, cannot prevail. Not to mention other objections, the party has his right of review, for aught that appears, and does not require the extraordinary interposition of the court for which he asks.
Judgment on the verdict