Littleton v. Richardson , 32 N.H. 59 ( 1855 )

Fowler, J.

By the 5th section of the 59th chapter of the Revised Statutes, (Compiled Statutes, chapter 63, section 5,) it is provided that, “ if any person shall place in any highway or street any timber, lumber, stones, or any thing whatever to the incumbrance or obstruction thereof, he shall be liable to the town for all damages and costs which said town shall be compelled to pay any person who has sustained damage by reason of such incumbrance or obstruction.”

This language is full, clear and explicit, admitting of no controversy as to its meaning. By force of it every town is entitled to recover of any person who has wrongfully incumbered or obstructed any highway within their limits, all damages and costs which they may have been compelled to pay any person who has sustained damage by reason of such incumbrance or obstruction.

In actions brought under its provisions, the proper question for the consideration of the jury is, whether the immediate and real cause of damage to the person injured was the incumbrance or obstruction placed in the highway by the defendant; whether, in the language of the statute, he “ sustained damage by reason of such incumbrance or obstruction.” If such be the fact, the plaintiffs may and should recover, by force of the statute, although the highway incumbered or obstructed were out of repair, or defective, and the plaintiffs themselves had been, and then were, guilty of negligence in regard to it, and although, if the highway had been in suitable condition and properly guarded, the damage sustained might not have occurred.

In the case before us, the defendant had no right to incumber or obstruct the highway, however defective or out of repair it may have been. In placing the stones upon it he was a wrong doer, and for the consequences of his wrong doing the statute makes him responsible over to the town, without regard to their negligence or want of attention to their appropriate duties. For any defects or want of repair in the highway, the plaintiffs were liable to indictment and to an action by any party suffering injury by reason thereof. But their misconduct does not and should not excuse the defendant from the consequences of his own wrongful acts in incumbering the highway. The road might be exceedingly defective, and still much used, without accident or injury happening; and, if the defendant wrongfully obstructed it, and thereby occasioned an accident, which would not have happened but for such wrongful obstruction, he is clearly liable to the town, under the provisions of the statute, for all damages and costs they may have been compelled to pay the person sustaining damage by reason of his own wrongful act in obstructing or incumbering such defective highway, without reference to the vigilance or negligence of the town in the premises.

The proper inquiry was, whether the incumbrance placed in the highway by the defendant was the prime moving cause of the accident to Shute — that without whose existence such accident would not have happened ; if so, the plaintiffs were entitled to recover, although their own negligence might in some more remote degree have contributed to the accident. If the jury should find that notwithstanding the defects and want of repairs of the highway, the injury to Shute would not have happened but for the wrongful act of the defendant in placing the stones upon it — that the stones being there was the direct and proximate cause of the accident — the plaintiffs would be entitled to recover under the statute the costs and damages paid Shute, although the jury should also find that negligence of the plaintiffs, in not sufficiently guarding the bank, contributed to the injury, or even that it might have been substantially prevented, notwithstanding the defendant’s misconduct, but for the neglect of the plaintiffs in not providing a sufficient protection against the perils of the embankment. Lowell v. Boston & Lowell R. R., 23 Pick. 32-35, and authorities; 1 Smith’s Leading Cases (Hare & Wallace’s Notes) 312, and authorities ; Smith & al. v. Dobson & al., 3 Man. & Grang. 59, (42 Eng. C. L. Rep. 42.)

As the instructions given to the jury were in this particular erroneous, the verdict for the defendant must be set aside and a new trial granted.

The instructions given as to the rule for determining the sufficiency of the highway seems to have been substantially correct.

The evidence in relation to the expenses incurred in defending against Shute’s action was properly excluded. The statute only provides that the town shall recover the damages and costs they may have been compelled to pay the person sustaining injury by reason of the incumbrance or obstruction, and does not include the expenses of defending themselves against his suit. The town cannot be said to have paid those expenses to the person injured, with any propriety.

So, too, with the evidence relating to the expense of removing the stones. The statute prescribes to the surveyor of highways, whose duty it is to remove incumbrances, a special method of procedure to recover the expenses of such removal, and we think that method must be pursued in order to charge the incumberer therewith. Rev. Stat., chap. 59, secs. 2, 3 and 4.

New trial granted.