56 A. 193 | N.H. | 1903
Lead Opinion
Although the action is stated in the record to be "case for negligence," no claim has been made that recovery could be had except under the statute establishing the liability of towns to travelers injured through the unsuitable condition of the highway. Laws 1893, c. 59. The only question considered, therefore, has been whether the facts stated bring the case within the statute.
The duty imposed upon towns by chapter 75, Public Statutes, enforceable by indictment as therein provided, to keep all highways within their limits suitable for the travel thereon, was not affected by the legislation of 1893. The liability at the private *260 suit of a traveler for damages happening to him by reason of the unsuitability of the highway, as established by sections 1 and 2, chapter 76, Public Statutes, was abolished by the express repeal of those sections. Laws 1893, c. 59, s. 5. In case of express notice to the town of insufficiency in any highway, in the manner provided in section 2, chapter 59, Laws 1893, towns were made liable for all accidents happening at the place or places to which the notice related, subsequent to the notice, until repair should be commenced. So far, the statute is an expression of the legislative view that as a matter of public policy towns ought not to be held liable at the private suit of travelers injured through the defect or insufficiency of a highway, except in case of express notice to the town of the unsafe condition causing the injury. This was a return to the policy of the early provincial act of 5 Geo. 1 (1719). Prov. Laws, ed. 1726, p. 151. The requirement of express notice in a particular manner was omitted from the act of February 27, 1786 (Laws, ed. 1797, p. 313), and was not contained in the law until revived in 1893.
In addition to these remedies, provision was also made for a right of private action in some cases. In the present case the notice required by section 2, chapter 59, Laws 1893, had not been given. The primary question therefore is, not whether the defect complained of is one which the town in the performance of its statutory duty of highway maintenance ought to have discovered and remedied before the injury, but is whether the defect complained of is one for which a right of action is given by the statute. The danger to the traveling public from the defect, and the ease by which it might have been discovered and protection furnished, are not material unless the defect is within the statute. In other words, fault of the town, however gross, is not of itself foundation for an action. Sargent v. Gilford,
The material part of the statute upon which the plaintiff relies is as follows: "Towns are liable for damages happening to any person, his team or carriage, traveling upon a bridge, culvert, or sluiceway, or dangerous embankments and defective railings, upon any highway, by reason of any obstruction, defect, insufficiency, or want of repair of such bridge, culvert, or sluiceway, or dangerous embankments and defective railings, which renders it unsuitable for the travel thereon." Laws 1893, c. 59, s. 1. The first section of chapter 76, Public Statutes, for which this section is in part substitute, was as follows: "Towns are liable for damages happening to any person, his team or carriage, traveling upon a highway or bridge thereon, by reason of any obstruction, defect, insufficiency, or want of repair, which renders it unsuitable for the travel thereon." A comparison of the two indicates an intention *261
to materially limit the liability imposed. In place of the words, "highway or bridge thereon," in the second line, are substituted the words, "bridge, culvert, or sluiceway, or dangerous embankments and defective railings, upon any highway." The words, "traveling upon a highway or bridge," were introduced into the statute at the time of the General Statutes in 1867 (G. S., c. 69, s. 1; R. S., c. 57, s. 1), and "appear to be used here for the purpose of showing that it was the object of this section of the law to give a remedy to the person honestly and properly using the highway or bridge which the town was bound to maintain and keep in suitable repair." Woodman v. Nottingham,
The result of these changes is, that while by the repealed statute a traveler injured by reason of any obstruction, defect, insufficiency, or want of repair which rendered the highway unsuitable had his action, no right of action is given by the new statute unless the damages happen by reason of the obstruction, defect, insufficiency, or want of repair of a bridge, culvert, or sluiceway, or dangerous embankments and defective railings, which the person injured was using for travel. Under the former statute, the nature, cause, or location of the obstruction was immaterial if the unsuitable condition resulted from any material cause which the town could remedy and which they were in fault for not correcting before the accident. Trust Co. v. Portsmouth,
The changes introduced into the statute indicate a purpose to greatly limit liability arising in this way, if not to entirely remove it; for no liability can arise at any portion of the highway other than those enumerated, and not then because the obstruction renders the highway unsuitable, unless the matter complained of constitutes an obstruction, defect, insufficiency, or want of repair in a structure the defect in which is made a ground of liability. Under the repealed statute, carelessness of a surveyor or some private individual, while engaged in doing a lawful work in a highway, might produce an unsuitable condition for which while the work was in progress the town might be liable, although not liable for the negligent act itself. As in Hardy v. Keene,
In the present case the plaintiff, walking upon a sidewalk in Concord, fell into a trench dug across the path by the adjoining owner for the purpose of repairing the private sewer or drain leading from the dwelling-house upon the adjoining lot to the public sewer in the street. The open trench, unguarded and unlighted, was evidence of an unsuitable condition of the highway which caused the plaintiff's injury. A pile of earth, lumber, a stick of wood, or a carpenter's bench similarly left might also tend to support a claim of unsuitability. It would be a duty of the town, enforceable by indictment if they knew or ought to have known of the obstruction, to have removed it. P. S., c. 75, s. 1. For such breach of duty, the legislature, in the absence of the express notice provided for by section 2, chapter 59, Laws 1893, has abolished the unlimited right of private action formerly existing. As has been suggested, to maintain her action the plaintiff must establish that the matter of which she complains as the cause of her injury, and which she alleges rendered the highway unsuitable, was an obstruction, defect, insufficiency, or want of repair of one of the highway structures named in the statute. It is apparent that the unlighted and unguarded trench (which *263
upon the facts stated must be found to have been the immediate cause of the injury) was neither a bridge, a culvert, or a sluiceway. It is suggested that the house-drain of Akron pipe, for the repair of which the trench was dug, is included within the terms "culvert or sluiceway." The fact that a trench was dug for the purpose of laying a house-sewer, or that a derrick was improperly erected beside a highway to build a culvert, would not transform the uncovered trench or unsafe derrick into a culvert or sluiceway. The fact that the construction complained of was intended to be used in constructing or repairing a culvert or sluiceway would be as immaterial as was the fact in Owen v. Derry,
This view is supported by such cases as have referred to the question. In Boyd v. Derry,
It is also claimed that the unsuitable condition of the highway was due to an insufficiency in "dangerous embankments and defective railings;" meaning that the trench dug to uncover the Akron pipe constituted the remaining sidewalk an embankment dangerous to travelers unless guarded by a rail. This clause of the act is criticised as grammatically incorrect. Assuming it to be so, the meaning is not doubtful. It may be if the word "with" were substituted for "and," or if the clause read "dangerous embankments defectively railed," the language would better satisfy a critical taste; but the meaning would not be altered. The reference is to an embankment dangerous because raised above the adjoining surface, which danger could be, but is not, guarded against by a suitable railing. The dangerous embankment and railing defective or totally wanting together constitute the defect. Owen v. Derry,
In this case an open trench across the sidewalk was left unguarded and unlighted. Upon this evidence it could properly be found that the work of reconstruction or repair of the house-drain was negligently conducted. Similarly, any excavation made in the highway and left unprotected would be evidence of negligence in the work. The safe conduct of such enterprises requires protection for the public while the work is in progress; but whether the town is bound under its duty of highway repair to fence against temporary dangers of this character, is a different question. If the town were indicted because of the existence of the uncovered trench across the sidewalk, and fined, the expenditure of the fine by an agent appointed by the court to put the highway in repair (P. S., c. 75, s. 6) in causing the trench "to be securely railed" would be an absurdity. The obvious and only reasonable repair of the highway would be to fill the ditch. A railing across the path would be in itself an obstruction to travel. The embankments which the defect in railing brings within the statute are only such as in the proper construction or maintenance of the highway the town ought to rail.
As before stated, the purpose of the legislature in 1893 was to limit the liability of towns to injuries arising from defects in definite portions of the highway necessary to their use by the public, and forming portions of the roadway used by travelers, *266
— bridges, culverts, sluiceways, and embankments which safe construction and maintenance required to be railed as permanent parts of the highway. An interpretation of the statute which, under the guise of their duty to securely rail dangerous embankments or to maintain a sufficient culvert or sluiceway, should render them responsible for the negligence of third persons rightfully or wrongfully engaged in constructive work in the highway, would defeat the legislative purpose and restore the condition under which the defendants were adjudged liable in Hardy v. Keene,
Exception overruled.
CHASE and WALKER, JJ., concurred.
Dissenting Opinion
I am unable to assent to the conclusion of the majority, that the purpose of the legislature of 1893 was to limit the liability of towns to injuries arising from such bridges, culverts, sluiceways, and dangerous embankments only as have been created by the town or city as permanent parts of the highway. No such limitation is expressed, and I discover no warrant for ingrafting such a limitation by judicial construction. In my opinion, a defective bridge, culvert, sluiceway, or dangerous embankment, temporarily existing, and of which the town or city has knowledge, is no less a defective bridge, culvert, or sluiceway within the meaning of the statute, because it does not exist as a permanent feature of the way. Nor am I yet ready to agree that a dangerous embankment, in order to be within the meaning of the statute, must be at the side of the road. If a bridge is carried off, or a section of highway is washed out or otherwise removed, making a dangerous bank across the way at each end of the chasm, of which the town or city has knowledge, and which reasonably ought to be railed, I am not yet prepared to assent to the proposition that such dangerous banks are not "dangerous embankments" within the meaning of the statute.
I am authorized to say that Judge Bingham concurs in this dissent. *267
