Stark v. Lancaster , 1876 N.H. LEXIS 55 ( 1876 )

The question here is, was there any evidence competent to be submitted to the jury, and upon which they might find a verdict for the plaintiff? I am of the opinion that there was.

To balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from facts proved, belongs to the jury. Wendell v. Moulton, 26 N.H. 41; Stone v. Danbury, 46 N.H. 139; Couch v. Stevens, 37 N.H. 169, 174; New Boston v. Dunbarton, 15 N.H. 206.

In order to maintain this action, it was incumbent on the plaintiff to satisfy the jury that the highway in question was not in suitable condition to accommodate the public travel thereon, by reason of some defect, obstruction, or insufficiency which the town were bound to remedy; and that the plaintiff's bailee, at the time of the happening of the injury complained of, was in the exercise of ordinary care and prudence; or that the want of ordinary care and prudence on his part did not materially and substantially contribute to produce the injury complained of. These were all questions of fact for the jury to determine upon the evidence. Johnson v. Haverhill, 35 N.H. 74; Winship v. Enfield, 42 N.H. 198; Chamberlain v. Enfield, 43 N.H. 356; Palmer v. Portsmouth, 43 N.H. 268.

Whether a given object is such a defect as would render the town liable for any injury happening in consequence of its depends upon a variety of facts and circumstances, all tending to furnish an answer to the question, Was the highway at that time and place in a reasonably safe and suitable condition for the customary travel upon it, under all the circumstances attending that particular case?

What would constitute a defect in the principal thoroughfare of a crowded and populous city, might be no defect at all in a highway in a sparsely settled country town. So, too, the question of whether the party injured was in the exercise of ordinary care and prudence, is one peculiarly proper for the determination of the jury. Almost in the nature of the case, evidence of the occurrence of all injury upon the highway cannot be laid before a jury without its showing something as to the care of the sufferer; and the case must be very extraordinary where there is not evidence competent and proper to be submitted to the jury. If there is evidence which the jury may rightfully consider, the question is for their decision "Where there is evidence to be weighed, the question is to be left to the jury, and the court do not attempt to determine its weight." Palmer v. Portsmouth, supra. "It is true, in many cases, that where the facts are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true of that class of cases where the existence of such facts comes in question, rather than where deductions and inferences are to be drawn from the facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that there was no defect, or that proper care had not been used, and that negligence existed. Another, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence and no defect. It is this class of cases, and those akin to it, that the law commits to the decision of a jury. Twelve men, of the average of the community, comprising men of education and men of little education, men of learning and men whose learning only in what they themselves have seen and heard, the merchant, the mechanic, the farmer, the laborer, there sit together, consult, apply their separate experience of the affairs of life to the facts proved, and draw a unanimous conclusion. This average judgment, thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one; that they can draw wiser and safer conclusions from facts proved, or admitted, than can a single judge; and in no class of cases can this practical experience be more easily applied, or properly employed, than in that which we are considering." Railroad v. Stone, 17 Wall. 659.

Whether the highway was defective, was one of the questions in dispute. That there was evidence competent for the jury to consider, from which they might have found a defect, is not open to question. But it is claimed that the defect, if any, was outside of the limits of the travelled path, and that, as the plaintiff's team was not being driven in the direction of the road, the town was not liable. This position, however, is fully answered in Stack v. Portsmouth, 52 N.H. 221. Entertaining these views, there must be judgment for the plaintiff according to the provisions of the case.

Exceptions sustained.