Citation Numbers: 62 N.H. 42
Judges: SMITH, J.
Filed Date: 6/5/1882
Status: Precedential
Modified Date: 1/12/2023
The defendant was bound to exercise ordinary care and prudence in his use of the highway as a traveller, to avoid injury to any one in the rightful use of the way. Any exercise of care and prudence less than this would be negligence, for which the defendant would be liable to any one injured thereby and not himself in fault. Whether the defendant exercised such care and prudence was a question of fact which the referee has found adversely to the defendant.
The plaintiff was lawfully employed in making repairs upon the highway, and which it was the legal duty of the city to make. If in making such repairs he observed ordinary care and prudence to avoid being injured by the passing teams of travellers, he was not guilty of contributory negligence. This also was a question of fact, which the referee has found adversely to the defendant. The degree of care and prudence which the parties were severally bound to observe was such as persons of ordinary care and prudence, or mankind in general, would have observed under the same circumstances. Tucker v. Henniker,
We see no objection to the admission of the conversation between the parties concerning the plaintiff's injuries, on the day following the accident. No reason is stated why the evidence was not admissible. Whatever admissions, if any, the defendant made of his own negligence, independent of any offer of compromise, were admissible, and if none were made, the testimony would seem to have been merely immaterial.
Whether the report should have been recommitted was a question of fact to be determined at the trial term, and it has not been made to appear that any useful purpose would have been accomplished by a recommittal. Janvrin v. Janvrin,
Exceptions overruled.
ALLEN, J., did not sit: the others concurred.