Hardy v. Keene , 52 N.H. 370 ( 1872 )

Foster, J.

The question, whether the plaintiff was travelling upon the highway' at the time of the accident, was a question of fact, properly submitted to the jury. We can see no element of law involved in it. The question was, whether the plaintiff was properly using the highway as a traveller.

The terms travel, traveller, and travelling have no technical meaning. A person who should abandon and forego his purpose of using the highway for the purposes for which highways are constructed, namely, for travel thereon, and should undertake to use the highway as a convenient stand-point for the observation of a passing procession, or an adjacent exhibition or performance of any kind, would not be a traveller “travelling upon the highway,” within the meaning of the statute ; but a person who, in -the ordinary course of travel, should pause and remain stationary upon the road, by reason of his attention being temporarily distracted, might or might not be deemed a traveller, and as such using the highway, according to the finding of the jury as to the character and length of time of the cessation of actual progress, and whether the delay were independent of the journey and intentional, or merely incidental and casual: with regard to all which circumstances the intention of the party would be a proper subject of inquiry.

The whole matter, under such instructions as the peculiar evidence in the case may seem to require, is clearly within the exclusive province of the jury.

The statute imposes a liability upon the town for damages arising from any obstruction, defect, insufficiency, or want of repair of the highway, which renders it unsuitable for the travel passing thereon ; and if in such case damage to a traveller happens through the fault of a highway surveyor, the remedy over against him is secured by the law. Gen. Stats., ch. 69, secs. 1, 7.

But the liability of the town is a matter entirely independent of the question of subsequent indemnification. It would manifestly be an unjust and unwise policy which should impose upon the innocent injured traveller the duty of searching out the remote author of the defect or insufficiency, who might be wholly irresponsible, pecuniarily, and resorting to him alone for redress. Such was never the intention of the law-makers.

Highway surveyors, it has been holden, are not the agents of the town. They are public officers, whose duties are prescribed by law. Their authority is not derived from the town, but from the statute. They are not under the control of the town. Their powers cannot be enlarged or abridged by any action of the town, and what they do or omit to do, in the proper exercise of their authority, is done or omitted because the law enjoins and prescribes their duties, independent entirely of municipal control or authority. Ball v. Winchester, 32 N. H. 435. The act of repairing highways is an act within the line of their official duty; and for any negligence in the performance of that duty, whereby the highway is rendered unsafe and dangerous, and by reason of which damage is sustained, they are remotely liable.

This remote obligation does not, however, relieve the town from its primary liability. Because a careless or improper act upon the highway, amounting to an obstruction, defect, or dangerous condition of it, is the official, independent act of the surveyor, it is none the less, for that reason, a defective and insufficient condition of the road.

An embankment or a ditch, made during repairs of the road by a surveyor, may be an obstruction and defect, and may be dangerous ; and for such an obstruction or defect the town is primarily liable. So, also, a derrick, within or upon the margin of a highway, or derrick ropes extending over and across the highway, may be an obstruction, a defect, or an insufficiency of a highway, if the ropes or the derrick be insecurely or improperly placed or fastened.

In this .case, the question of the liability of the surveyor over to the town is one with which the prudent traveller has nothing to do. liéis entitled to protection from the town, whose duty is to provide for him a highway, reasonably safe and reasonably free from every obstruction or defect which may endanger its ordinary and proper use.

The law looks not to the cause of the defect, or the remedies over which the town may have. Frost v. Portland, 11 Me. 271; Palmer v. Portsmouth, before cited.

A question for the jury in this case will be, Did this derrick or its appurtenances, as placed and fastened upon or over the highway, constitute a defect or dangerous condition of the way ? The settlement of this question depends upon the evidence as to the manner of its location and fastening.

The derrick and the guy ropes, as originally placed in the margin of the road, may or may not have constituted a defect. They would not, if securely and properly fixed and adjusted : if insecurely and improperly and unsafely placed and fastened there, they would. The fact cannot be determined as a question of law.

The falling of one. of the guy ropes was an accident, attributable, it may be, to the culpable negligence of the surveyor; — whether it became an obstruction or a defect of the highway only when it fell, or whether, from its improper and unsafe condition, it was a' defect from the time of its erection, are questions of great importance for the consideration of the jury : because, whether the defect was caused by the negligence of the surveyor or not, the liability of the town depends upon the further questions, whether, under the circumstances, the town were in fault; whether they had or should have had notice of the' defect; .and whether they had a reasonable opportunity to remove it.

If the town had no notice or means of notice, and could not by any possibility have removed the defect before the accident; if the falling of the guy ropes alone occasioned the injury, which, by reason of no apparent fault,- seemed to be securely and properly fastened, and so the defect, obstruction, accident, and injury were simultaneous, the town would not be liable.

If the derrick and ropes were insecurely placed and fastened, and the town, having notice and a reasonable opportunity to repair the defect before the accident occurred, were therefore in fault for not doing so, the town would be liable.

The case is governed by the principles applied in Hubbard v. Concord, 35 N. H. 52, Johnson v. Haverhill, 35 N. H. 74, Hall v. Manchester, 40 N. H. 410, Clark v. Barrington, 41 N. H. 44, Howe v. Plainfield, 41 N. H. 135, Palmer v. Portsmouth, 43 N. H. 265. and Ray v. Manchester, 46 N. H. 59,—with which decisions in this respect we are entirely satisfied, by the authority of which we are bound, and the wisdom and justice of which are manifested by their application to the present case.

In Hubbard v. Concord the principle applied was, that, if the defect was caused by the recent action of natural causes, the town were not liable, unless, under the circumstances of the case, they ought to have repaired the defect before the accident happened, and had reasonable opportunity to do so.

And in Johnson v. Haverhill, and most if hot all the other cases above cited, the same principle was applied in the case of defects caused by human agency, whether with or without fault, provided the fault of the immediate agent was one for which blame could not be imputed, either to the plaintiff or the defendant.

But, although the surveyor cannot be regarded as the agent of the town for the purpose of imposing upon the town a liability on account of his negligence, for many other purposes he may be deemed the agent of the town, as, for example, to purchase material, if necessary, to repair the highways.

So, also, he may be the town’s agent, so to speak, to charge them with notice of a defect in the highway. Defects and obstructions are supposed to be peculiarly under the observation of the surveyor ; — especially was it so in the present case. If this derrick and appurtenances were improperly and insecurely placed and fastened, through the carelessness or fault of the surveyor, he who placed them thus knew of the defect; and if he knew it, it would be evidence from which the jury might find that the town knew it.

In this aspect, therefore, the actual condition of the derrick and ropes when placed in position, and long before the accident occurred, will be a Material question for the jury.