Wilson v. Barnstead

65 A. 298 | N.H. | 1906

"Towns are liable for damages happening to any person, his team or carriage, traveling upon a bridge . . . upon any highway, by reason of any obstruction, defect, insufficiency, or want of repair of such bridge, . . . which renders it unsuitable for the travel thereon." Laws 1893, c. 59, s. 1. The principal question raised by the exceptions is whether the alleged defect was a defect in the bridge described in the record, within the meaning of the statute. A "bridge" is defined to be "any structure which spans a body of water, or a valley, road, or the like, and affords passage or conveyance." Cent. Dict.; 4 Am. Eng. Enc. Law (2d ed.) 919, and 5 Cyc. 1052, and authorities cited therein. This definition necessarily implies that the term includes the abutments, if any, upon which the portion of the bridge specially designed for travel rests, and all other portions of the structure that are required to render it complete according to the plan on which it is built. The portion of the highway occupied by such completed structure is a bridge, within the ordinary meaning of the term. Tinkham v. Stockbridge, 64 Vt. 480; Tolland v. Willington, 26 Conn. 578. There is nothing in the statute itself or its history tending to show that the term was used in it in a different sense. It must, therefore, be understood in that sense. A person is "traveling upon a bridge," within the meaning of the statute, when he is traveling over that part of the way which is above the abutments and other essential portions of the structure, as well as when he is traveling over the part that spans the stream, valley, or other depression. If he is injured by any "obstruction, defect, insufficiency, or want of repair" there existing, he is injured by an "obstruction, defect, insufficiency, or want of repair of such bridge," and the town is liable, by virtue of the statute, for the damages he suffers by the injury. The location of the particular lines which, in a given case, separate a bridge from the other parts of the highway of which it forms a part obviously depends upon the plan of its construction. Such location will differ as bridges differ in plans of construction. It is the duty of the court to construe the statute and determine what is the meaning of the term "bridge" there used; but it is purely a question of fact whether a particular part of the way is upon the bridge, within the meaning of the term thus defined.

In this case there was evidence from which impartial men might reasonably find that the defect in question was a defect in the bridge, within the true meaning of the term as used in the statute. No question is or can reasonably be made but that the difference in the levels of the planking and the header appertained to the bridge. While this difference was small, it cannot be said that it was not a defect, especially in connection with the depression beyond. Its natural tendency was to produce a jolt, more or less severe according to the character of the wagon and the speed the wagon was drawn. It might reasonably be found from the testimony that their depression beyond the header was over the abutment and over cobblestone filling required to protect the abutment and complete the bridge structure, and so was upon the bridge. While this depression was not very deep, its natural tendency was also to produce jolts in a passing wagon. It was certainly a defect in the way, and it does not appear probable that reasonable, impartial men would unanimously find that it alone, or in connection with the other defect mentioned, did not render the way unsuitable for the travel over it. The defendant's position, that as the defect was not in the abutment itself or the cobblestone filling, but in the sand and hardpan surfacing, it was therefore not in the bridge structure, cannot be sustained. The surfacing above the abutment and filling was as much a part of the permanent structure as were the abutment and filing. The fact that the depression arose from the wear of passing travel, instead of from faulty construction, is immaterial. The statute makes no distinction of this kind.

The defendants' motions were all properly denied. No exception was taken to the court's definition of a bridge in his instruction to the jury. It may be said, however, that it appears to have been in accordance with the law.

Exceptions overruled.

All concurred.