Davis v. Hill , 41 N.H. 329 ( 1860 )

EowleR, J.

It seems entirely clear, upon the authorities, that the -want of a sufficient railing, barrier, and protection, to prevent travellers passing upon a highway from running into some dangerous excavation or pond, or against a wrall, stones, or other dangerous obstruction, without the limits of the road but in the general direction of the travel thereon, may properly be alleged as a defect in the highway itself. Willey v. Portsmouth, 35 N. H. 303 ; Cogswell v. Lexington, 4 Cush. 307; Hayden v. Attleborough, 7 Gray 338; Jones v. Waltham, 4 Cush. 299 ; Palmer v. Andover, 2 Cush. 600.

In Palmer v. Andover the alleged defect in the highway was the want of a railing between the highway and an embankment existing against a mill-pond, at an angle of the road as it passed down the hill. It appeared that in descending the hill, before reaching this point, at a part of the road entirely free from defect, the horses became detached from the plaintiff’s carriage by the purely accidental coming off, without the plaintiff’s fault or negligence, of the nut of a bolt, which attached the pole with the traces and other harness of the horses thereto; that thereupon the horses, so detached from the carriage, following the road, turned to the right and passed safely over the bridge, —while the carriage kept nearly straight forward, passing to the left of the travelled way, and thence over the embankment into the mill-pond. The court decided that the defendants were liable for the injury thus resulting, if a rail or other barrier were, in the judgment of the jury, necessary for the proper security of travellers, and would have prevented the happening of the accident.

In Cogswell v. Lexington it was holden, that the defendants were liable for an injury happening to a traveller, while in the exercise of ordinary care, in consequence of driving his wagon against a post which stood without the limits of the highway, but near the line thereof, and within the general course and direction of the travel thereon, and rendered the travelling dangerous.

In Jones v. Waltham it was substantially decided, that, if there were dangerous pits, excavations, precipices, walls, stones, or other obstructions, situated without the limits of the located highway, but so near it and so situated that they would, without barriers or guards, endanger the safety of passengers using the travelled or made part of the road, with ordinary care and diligence to avoid exposure to in-jui’y, it was the duty of the town to guard against such pits, excavations, precipices, walls, stones, and other obstructions, by means of a railing, or in some other proper mode; and, if they neglected to do so, and in consequence of such neglect any person using the road sustained an injury, the town would be liable for the damage suffered.

In Hayden v. Attleborough, where the plaintiff sued for an injury occasioned by her driving, in the evening, into a cellar beyond the limits of the highway, the court held, sustaining fully the instructions of the judge at nisi prius, that, where the limits of a highway are not indicated by any visible objects, and there is nothing to show a person, driving thereon in the evening, that the course he is pursuing is not within the way intended for the public travel, the town is liable for an accident to a traveller resulting from a defect within the general course and direction of the travel over the highway, although beyond the limits of the located way, if so near thereto as to render the trav-elling thereon dangerous, and there is nothing to give trav-ellers notice of the defect until too late to avoid it.

It is quite apparent from these decisions, we think, that the amendment in the case before us was properly allowed, being merely the statement of the same sufficient cause of action in a different way, to remedy the imperfection and uncertainty of the original count. The substantial grievance complained of in the original declaration was, the unsafe and dangerous condition of the highway at the point of the accident, by reason whereof the plaintiff suffered damage. The substantial injury, then, being the damage to the plaintiff by reason of the defective highway, it is immaterial whether that defect was the want of a railing or other protection upon the bank, which rendered the road unsafe or dangerous, or its being “narrow, sloping, rounding, sidling, rocky, uneven, and incumbered with ice, unsafe and dangerous to pass.” It would require precisely tbe same evidence to support tbe action after the amendment as before. Nor is it any decisive test of the impropriety of tbe amendment, that tbe plaintiff’s proof might not sustain bis declaration as originally drawn, but would support it as amended. Tbe very object of an amendment generally is, to obviate some variance between tbe allegations and the proofs, which, if not corrected, would defeat tbe action. Stevenson v. Mudgett, 10 N. H. 338; Merrill v. Russell, 12 N. H. 74; Bassett v. Salisbury Manf. Co., 28 N. H. 452; Haynes v. Morgan, 3 Mass. 208; Ball v. Claflin, 5 Pick. 303; Swan v. Nesmith, 7 Pick. 220.

Tbe amendment having been rightfully received, tbe exception taken to the ruling of tbe court below admitting it, must be overruled; and as this amended count states what may be found by tbe jury a good cause of action, tbe plaintiff will be entitled to judgment upon the demuri’er, unless there shall be a motion for leave to withdraw it.

At tbe suggestion of counsel we have considered tbe question of costs, and are of opinion that tbe terms of receiving the amendment should be the payment of tbe costs of tbe trial to the time of its allowance; and that, if tbe defendants desire to withdraw the demurrer, they may do so, upon paying the costs arising in the case since the filing of the same.

Exceptions overruled.