Woodman v. Nottingham , 49 N.H. 387 ( 1870 )

Nesmith, J.

Under section one of chapter sixty-nine of the General Statutes now in force in this state, “ towns are made 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.” It will be seen, that this section is made to differ slightly from the first section of chapter thirty-seven of the Revised Statutes. The words, “ special damage,” are exchanged for the more comprehensive and general term “damages”implying any and all damages, whether specially set forth in the plaintiffs declaration or not. Then the word ‘ ‘ defect” is for the first time introduced into the present Statute, a word, that gives emphasis, and additional strength and meaning to the language of the old statute, viz : “ obstruction, insufficiency, or want of repair.” The word traveling upon a highway or bridge,” 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.

The defendant’s counsel, and his elaborate brief in this case, contends that the court should give a more limited or restrictive construction to the aforesaid statute, than it has usually received from the courts in this state.

Our decisions in cases like this in this state, have sustained the rule of giving indeminity for injuries to property, as well as to the person. We have interpreted the word damages to mean here a compensation, recompense, or satisfaction to a party plaintiff for an injury actual received by him from the defendant and precisely commenserate with the injury, whether it be to his person, or estate, 2 Greenleaf’s Evd. §253.

The plaintiff first proving the defendant to be in fault, or a wrong doer, then it legitimately follows that it should be held liable for the natural, proximate, and direct consequences of its default. Butler v. Kent, 19 Johnson, 223 ; The default on the part of the defendant in this case was a failure to provide a sufficient railing at the side of the bridge, which it was liable to maintain, and as a direct result of such negligence, this accident has happened to plaintiff. In Massachusetts it has been held, that the Avaut of such a railing at the side of a higliAvay, when necessary to the security of travelers, constitutes a legal deficiency in the way within the meaning of their statute. Williams v. Clinton, 28 Conn. 264; Hayden v. Attleborough, 7 Gray, 338.

The New Hampshire statute has received a similar construction, Davis v. Hill, 41 N. H. 329 ; Willey v. Portsmouth, 35 N. H. 303; Norris v. Litchfield, 36 N. H. 271.

The question of liberty in this case was properly submitted to the jury to find, and their verdict settled the fact against the defendant.

We do not understand the defendant’s counsel to complain of the compensation given by the jury for the actual bodily injury, but, he contends against the alloAvance more especially for the loss of the money in the plaintiff’s pocket, and Avhich the jury have found plaintiff did lose, because such loss was the proximate, natural or direct consequence of such accident.

In our vieAV, the fair and reasonable construction of our statute requires, or necessarily implies that the Avord damage, which shall happen to any person, includes all injury to property as well as person, the pecuniary loss to the pocket, as Avell as the bodily loss of bone, or flesh and blood.

Indemnity for damage to the person, therefore, includes necessarily compensation for every thing then on, about or belonging to the person, as Avell as for all bodily injuries, Avhich are proved to be the result of the accident. The faulty negilence of the defendant in the opinion of the jury, brought actual injury to plaintiff’s person at the same time, Avhen his clothing was torn, and his money lost. The plaintiff also realizes loss and damage of his money all traceable to the same procuring cause, and without evidence of want due care on his part, and shows himself so far partly entitled to the beneficial remedy of this statute.

The law generally seeks out, and casts its burdens, or penalties upon the party,who is first and most guility. Culpable negligence is the omission to do something, which a reasonable and prudent man would do, or the doing of something, Avhich such a man Avould not do under the circumstances surrounding each particular case, or it is the want of such care, as men of ordinary prudence Avould use under simi lar circumstances. With these vi ews, vve hold the defendant responsible equally for the loss of plaintiff’s money, clothing and bodily vigor.

The defendant being found a wrong doer, the plaintiff may be re-\ garded as bailee both of the horses and money, and in that capacity, holding a special property in such chattels, and sufficient to entitle him to recover in his name for the entire injury. A bailee, having a special property, may recover the whole value of the property, holding the value beyond his own interest in trust for the general owner, and the judgment recovered by the bailee may be pleaded in harto any action, that might be afterwards brought by the general owner for the same property. 2 Hilliard on Torts 571; King v. Dunn, 21 Wend. 253 ; Stanley v. Gaylord, 1 Cush. 536 ; Sedgw. on Dam. 569; Barron v. Cobleigh, 11 N. H. 560; Littlefield v. Biddeford, 29 Maine 320.

It has been recently decided that the words team or carriage, as expressed in this statute, are meant to include whatever animal or animals, drew or carried the load, and their harness, also the load itself. Connery v. Jefferson, 46 N. H. 521.

We admit the principle should govern this case, that the defendant, is not liable for any injury or loss, of which a defect in the bridge is not the proximate or direct cause. In Vermont, it has been held, under their statute, not unlike ours in this state, that where a party in attempting to extricate his horse from a hole in a defective bridge, into which his horse had stepped, was injured by the animal; that he could recover against the town, which was bound to repair the bridge. Stickney v. Maidstone, 30 Vt. 738. So where a traveller, in the exercise of ordinary care and prudence, voluntarily leaped from his carriage, because of its near approach to a dangerous defect in the highway, and thereby sustained an injury— the town was held liable, although the carriage did not come in actual contact with the defect. Lund v. Tyngsborough, 11 Cush. 563. The defects in the bridge and highway were the porximate, not the remote causes of the injury or damage in these cases, no more than was the want of railing on the bridge, the proximate cause of the loss to the plaintiff in the case before us. Thus far, we are inclined to sustain the rulings of the court, and the special finding of the jury giving the actual damages of §578 to the plaintiff.

The court also instructed the jury, that they might give exemplary damages if in their judgment the circumstances warranted it; to which the defendant excepted,and the j ury found as exemplary damages the sum of §100. We are aware that exemplary, or vindictive damages have, under instructions of the court, been sometimes given by juries in this class of actions against towns. In this state, the case Whipple v. Walpole, 10 N. H. 130, is referred to, as the leading authority to justify such a verdict. The facts in that case seem to have made out a case of gross negligence, therefore, the plaintiff seems to have been entitled to claim a higher compensation, than he would have been entitled to, had the agents of the town exercised more diligence in meeting the just claims of the plaintiff. It appears to us, the true measure of damages should be limited and measured by the rule to one full, actual compensation for the injury received, neither more or less. Prof. Greenleaf, in his able treatise on this subject, well remarks, if the plaintiff’s injury be aggravated by the criminal act, or neglect of the defendant, by evidence of recklessness, insolence, wanton, or malicious, or oppressive violence, and. the like on the part of the defendant, all such conduct should be properly considered, in estimating the plaintiffs actual damage, and objects to making up a larger sum, in the form of punitive or vindictive damages. 2 Green. Ev. Note to sec. 253. Also, § 273. In a recent English case, — Emblem v. Myers, 6 Hurls. & N. 54,—Jus. Pollock, says: “I do not say that in actions for negligence there should be vindictive damages, such as are sometimes given in actions of trespass, but the measure oí damages should be different according to the nature of the injury, and the circumstances with which it is accompanied.” So in New York, in the case Wallace v. Mayor, of New York ; 2 Hilton 440.

The court there say, “that where the circumstances show there was a deliberate, preconceived, or positive intention to injure, or that reckless disregard of the safety of person or property, which is equally culpable, vindictive damages are allowable; but in cases of negligence, simply, the rule is to allow the actual damages only. The award of smart money in mere cases of negligence, should not be allowed. Moody v. McDonald, 4 Cal. 297 ; Morford v. Woodworth, 7 Ind. 83 ; 14 Louis. 806.

It appears that the negligence found here is not of that aggravated character, which justifies the allowance of exemplary damages ; nor do we believe it to be necessary, or proper in actions generally against towns under our statute, to instruct the jury to allow vindictive damages eo nomine; for it cannot be presumed that towns in cases of this kind are influenced by malice when accidents of this nature occur ,• and if the circumstances of any case show even gross negligence, it appears to us to be enough, for the jury in making up their verdict, to give all the actual damages the plaintiff has suffered, and no more; nor do we think that the legislature ever contemplated anything more than a full indemnity for the injury received to the person or property, by their statute regulating this subject.

• Hence, we overrule the case, of Whipple v. Walpole, as a case of authority on this point. We infer from the fact that our present statute gives less damages, than were allowed by the provincial act on this subject ,• that the legislature has actually intended to restrict them to a compensation equal to the injury in all cases. The vindictive or exemplary damages, specially found by the jury will be deducted from the verdict in this case, and judgment is rendered on ■the verdict for the balance, as found by the jury.