Davis v. Manchester , 62 N.H. 422 ( 1882 )

The question whether the sidewalk at the time and place of the accident was reasonably safe and sufficient for the public travel was the only one submitted to the jury. It was upon this question that the city ordinances requiring certain things to be or not to be done on the streets and sidewalks were received in evidence. In addition to putting fully before the jury, by proper evidence, the condition of the sidewalk and its material surroundings, the plaintiff was permitted to prove that its condition, or some features of it, were prohibited by the city ordinances. It is contended that a city may be liable for an injury happening by reason of objects found in the street in violation of its ordinances, although in the absence of such ordinances it would not be liable; that the ordinances are conclusive in such a case that the street is unsuitable for the travel, or, if not conclusive, are admissible in evidence as declarations or admissions of the defendant tending to show the condition in which its streets must be kept in order to conform to the requirements of the statute. None of these positions can be sustained.

The liability of towns and cities (G. L., c. 44, s. 2) for injuries caused by defects in a highway is created by the statute, and is limited to "damages happening . . . by reason of any obstruction, defect, insufficiency, or want of repair which renders the highway unsuitable for the travel thereon." G. L., c. 75, s. 1. Towns are not liable for damages caused by obstructions which do not render the highway unsuitable for the public travel. Their obligation to keep their ways in repair is measured by the same standard. They are not required to keep them in perfect condition, but "in good repair, suitable for the travel thereon." G. L., c. 74, s. 1. Generally speaking, nothing is an obstruction, defect, insufficiency, or want of repair, within the meaning of the statute, which the town is not bound to remove or remedy, and for the existence of which it is not liable to indictment and fine. Hubbard v. Concord, 35 N.H. 68; Johnson v. Haverhill, 35 N.H. 83; Palmer v. Portsmouth, 43 N.H. 268; Ray v. Manchester, 46 N.H. 60. No power to increase or diminish their liability is conferred upon towns or cities. G. L., c. 37; c. 44, s. 2. "City councils . . . may make, establish, publish, alter, modify, amend, and repeal ordinances, rules, regulations, and by-laws . . . to regulate all streets and public ways . . . and the use thereof, and the placing or leaving therein any carriages, sleds, boxes, lumber, wood, or any articles or materials, and the deposit of any waste or other thing whatever; the removal of any manure or other material therefrom; the erection of posts, signs, steps, or awnings; the digging up the ground, or any other act by which the public travel may be incommoded; the securing, by railings or otherwise, any well, cellar, or other dangerous place in or near the line of any street; to prohibit the rolling of hoops, playing at ball, or flying kites, or any other amusement or practice having a tendency to annoy persons passing in the streets and sidewalks, or to frighten teams and horses within the same; and to compel persons to keep the snow, ice, and dirt from the sidewalks in front of the premises owned or occupied by them; . . . but no by-law or ordinance shall be repugnant to the constitution or laws of the state" G. L., c. 48, s. 10, These provisions authorize city councils not to legislate touching the City's liability, but to impose obligations upon the inhabitants of the city and other persons respecting the occupation and use of the streets. They do not give or purport to give authority to enlarge or to modify in any way the statutory duty of the city to keep its ways in suitable repair, or its responsibility for damages happening to travellers upon them. The power of the councils is expressly limited to the making of ordinances not repugnant to the general laws of the state. In actions for damages and indictments alike, the question always is, whether the highway at the place complained of was reasonably safe and suitable for the travel thereon, and according as this question is found the city is or is not liable. Proof of the mere fact, that the thing complained of as a defect was in the street in violation of an ordinance, would not be enough to establish the city's liability; the street might, nevertheless, be in a condition suitable for the public travel. Proof that the alleged obstruction was authorized by an ordinance would not constitute a defence; the street might nevertheless be unsuitable for the travel. The things prohibited do not render the streets unsuitable any more than they would if they were not prohibited. The fact that they are prohibited is not relevant to the issue; it has no tendency to show the actual condition of the street, and is not an admission, or evidence of an admission, by the city that their presence in the streets renders them unsuitable for the travel. within the meaning of the statute. Many things may properly be forbidden to be done on the public ways of a city, which, if done, would in no manner affect the safety of travellers, and many things, also, which, though they might render the travel less safe, would not constitute an obstruction or defect for which the city would be liable, as, for example, coasting, or individual misconduct of any kind. Ray v. Manchester,46 N.H. 59. The city councils might deem it advisable that the streets be maintained in a better and safer condition than that prescribed by the statutes. If their requirement, that they be so kept, were held to raise the standard of the city's obligation, — to be an admission or evidence of an admission that a street not maintained at the degree of excellence so required is defective and insufficient, — the city might be subjected to damages, not for its negligence, but by reason of its extraordinary and unnecessary precaution.

Evidence has been admitted to prove payment by the defendant of damages to another person injured by the same accident, as tending to show an admission by the town that the highway was defective. Coffin v. Plymouth,49 N.H. 173; Grimes v. Keene, 52 N.H. 330; Gray v. Rollinsford,58 N.H. 253. The distinction between this doctrine and that now contended for has already been suggested. The action of the town there received in evidence was taken with a direct reference to its statutory liability, while that of the city in adopting ordinances has no relation to or effect upon its own duties. It may be argued that the corporation will not voluntarily assume the burden of paying damages for which it is not legally responsible; but by a requirement that its citizens and others shall do or refrain from doing certain things upon its highways, it takes upon itself no burden: it merely imposes on other parties obligations, for the performance or non-performance of which it is in no manner responsible. The doctrine of Coffin v. Plymouth had the approval of a majority only of the court. It goes to the extreme verge of the law, and must be confined in its application strictly within the limits assigned in that case, and in those which have followed it.

The error of admitting the evidence was not cured by the instructions to the jury that the duty of towns to keep highways in a condition reasonably safe and suitable for the customary travel cannot be diminished or enlarged by municipal ordinances. If it necessarily follows from this proposition that the ordinances were not competent evidence and should be disregarded, the conclusion is a deduction of law which should have been explicitly stated to the jury. They may have understood, notwithstanding the instructions, that the ordinances were to be considered and weighed in determining the sufficiency of the sidewalk. To correct an error in the reception of evidence, the instructions to disregard it must be unequivocal.

Exceptions sustained.

STANLEY, SMITH, and CLARK, JJ., did not sit: the others concurred.