Clark v. Barrington , 41 N.H. 44 ( 1860 )

Bellows, J.

As to the defendants’ first exception in his brief, it does not appear that such instructions were asked for, or that any exception was taken at the time ; and the only question now is, were the instructions that were excepted to erroneous, for the reason that the matter noted in the defendants’ first point wras omitted, or for any other cause ?

The plaintiff’s case is, that by reason of a defect in the road a severe strain was brought upon a hook in the left shaft of the wagon, by which it was broken, and the injury happened in consequence. But, on the other hand, the existence of the defect was disputed, and evidence offered tending to disprove it. The evidence, however, on both sides went to show that the hook was unsound, defective, or partially broken ; that of the plaintiff, that the defect and place of fracture was below the surface of the shaft, and had not been discovered; that of the defendants tended to show that the plaintiff knew of the defect.

The point of the charge is, that though the defect in the hook might have contributed to the injury, yet, if it was unknown to the plaintiff, and he was in no fault for not knowing it, the town was liable. As to the general proposition in the charge, that if the injury was the result of a defect in the road, and some accident for which the plaintiff was in no fault, the town would be liable, there can be no objection. For the roads should be constructed in reference to such accidents, and be made reasonably safe, in case they happen ; as in respect to railings upon a bridge, or the edge of a precipice, they being required for the very purpose of protection in case of accidents. If, for the want of such reasonable protection, a horse should be frightened, and, without fault of the driver, spring to one side, so as to throw off the carriage, the town would unquestionably be liable. But the illustration given by the judge must be taken as the rule to guide the jury; and the precise question is, whether the carriage and harness must be absolutely sound and safe in all their parts, without regard to the question whether the plaintiff knew of the deficiency or not, or was or was not in fault in not knowing it.

The general proposition undoubtedly is, that there must have been on the part of the plaintiff the exercise of ordinary care and prudence. Butterfield v. Forrester, 11 East 60 ; Farnum v. Concord, 2 N. H. 392. But whether this implies that his horse, carriage and harness must be absolutely sound and suitable at all events, is the question. It is quite clear that the injured person may be in the exercise of ordinary care and prudence, and yet a defect exist in his horse, carriage or harness, that has escaped his observation. A bolt may become loose by the working off of the nut; iron may give way by reason of a hidden flaw, existing from the first, or caused by some unperceived shock in the use; the harness may fail, for similar causes ; or the horse, though reasonably safe, may prove unmanageable in some cases, where a horse perfectly trained would have avoided the accident. To hold that the town was not liable in such cases, although the inj ury was caused by a defect in the road, cooperating with such defect in the horse, carriage or harness, would trench seriously upon the simplicity of the rule, that the plaintiff must have been in the exercise of ordinary care and prudence. Instead of that, we must have the rule that the plaintiff must he provided with horses, carriages and harnesses absolutely sound, and free from defect in every respect, and at every point; in fact, that he must be bound for the exercise of extraordinary care and prudence in respect to his equipage. Such a doctrine, we think, is not sustained by reason or authority. The ordinary care and prudence which the law requires applies as well, we think, to the provision of horses, carriages and harnesses, as to their management when in use by the plaintiff.

In the case of passenger-carriers, though they are not warrantors, like carriers of merchandise, the rule of law is very stringent, requiring the use of the utmost care and 'diligence in providing coaches and other carriages, steady horses, and competent and skilful persons to manage them, and making the proprietors liable for the smallest negligence in any of these things. Eedf. on Itailr. 323, and note. And yet it is held in these cases, that where an injury happened by the breaking of the iron axletree of a coach, caused by a flaw in the centre, not visible upon the surface and not to be discovered by the most careful and thorough examination, the proprietor was not liable. See Ingalls v. Bills, 9 Met. 1, where the cases on this point are fully examined.

In that case the verdict for the plaintiff’ was set aside because the court instructed the jury that the coach must he at all events road-worthy, and that the defendants would not be excused by showing the defect to have been a bidden one. In these cases, carriers are bound for the same degree of care, in providing suitable carriages and cars, as in conducting them when in use, and we see no ground for any distinction. And so it is in respect to those who have occasion to use the public highways, though ordinary care is required of them, instead of the extraordinary care required of carriers.

The rule which we hold should govern'the traveler in respect to the condition of his team is sustained by Hunt v. Pownal, 9 Vt. 418; Palmer v. Andover, 2 Cush. 608; which is well considered and cited in Norris v. Litchfield, 36 N. H. 276.

It is said by counsel that as the law requires of towns a highway absolutely safe, and holds it responsible for damages caused by a hidden defect, though there be no fault in not discovering it, so the traveler ought to be held to the corresponding obligation; of providing teams absolutely safe and free from defects. But we apprehend that towns are not held to the degree of strictness assumed by counsel. On the contrary, as we understand it, they are required to keep their roads in a reasonably good‘state of repair, considering the extent and nature of the use for which they are required; and of this the jury are substantially the judges. In constructing the roads they are bound for ordinary eare and skill, and in case of injury by stones or otherwise, they are, as the law now stands, only bound for reasonable vigilance in - discovering the defect and making the repairs. In case of an injury to a road properly constructed, by water or other cause operating beneath the surface, and not discovered by the town, and the town being in no fault for not discovering it, we should hesitate long before holding the town liable. Herbert v. Concord, 32 N. H. 52; Plummer v. Haverhill, 32 N. H. 74.

The comment of the judge upon the testimony of Mr. Hale was not objectionable. It was proper that the attention of the jury should be called to his position as the surveyor.

There must, therefore, be

Judgment on the verdict.