Elliot v. Concord

Elliot v. Concord, 27 N.H. 204 (1853)

Court: Superior Court of New Hampshire · State Trial Courts
Decided: December 15, 1853
Judges: Bell
Citations: 27 N.H. 204

Cited by 3

Headnotes

Towns are liable, in the first instance, for special damages occasioned by any obstruction placed in a public highway, without right, by any person or corporation. A railroad company was required, by its charter, so to construct its railroad as not to obstruct the safe and convenient use of any highway. While building an embankment for their track across a highway, a traveller sustained special damage from the obstruction. Held, the town was liable to the sufferer.

Summary

Case, for damages sustained by reason of an injury to the wife of the plaintiff, while travelling upon a public highway in said town, from an alleged defect therein. Upon the trial, on the general issue, it appeared in evidence that the highway in question had been used as a public highway more than twenty years prior to the 17th of June, 1849; that on that day the wife of the plaintiff was riding in a wagon along said highway, and upon arriving at the place where the Concord and Claremont Railroad crosses the highway, she found laborers there, employed in filling in earth and sand across said highway, for the purpose of making an embankment, to be raised about two feet above the surface of the highway, and upon which were to be laid the rails for the track of said railroad; that at that time the embankment, to the depth of about two feet, had been extended from the east side about two-thirds the distance across the travelled part of the highway; that the embankment, at its termination and at its sides, in the travelled part of the highway, was so steep that it could not be passed over with a carriage, and that this had been the situation of the embankment for several days preceding the 17th of June; that in consequence of this obstruction to the travel along the east side and middle of the travelled part of the highway, carriages were obliged to pass along the west side of the travelled part of the highway, and very near to the gutter or ditch, on the west side, in order to pass round the end of the embankment-; that when the plaintiff’s wife came to this place, on the 17th of June, the laborers were engaged in carting earth and sand into this passage way against the end of the embankment, and also each way beyond the line of the embankment, for the purpose of continuing the embankment across the highway, and also for the purpose of filling up the highway along its west side, sloping off each way from the embankment to a proper grade for carriages to pass over the embankment; that several cart loads of sand had been dumped down, both in the line of the embankment and each way beyond it, which had been slightly levelled off, but so as to leave the surface of the passage way uneven, though not so much so as to prevent carriages from passing, if the surface had been sufficiently hard to prevent the wheels from sinking deep in the sand; that one of the laborers undertook to lead the horse which the plaintiff’s wife was driving, along over this sand, and at or very near the point where the line of the embankment crosses the highway the wheels upon one side of the wagon sunk so deeply into the sand as to throw the wife of the plaintiff out of the wagon, and against a pile of boards lying in or very near the gutter, on the west side of the highway, whereby she was severely injured. It was proved or admitted, upon the trial, that the Concord and Claremont Railroad had been duly laid out across said highway prior to the said 17th of June, and that the place where said accident happened was within the limits of land taken by said railroad company for their railroad, under the authority of their act of incorporation and of the laws of this State. On the part of the defendants, it was contended that upon the foregoing facts, and under the powers conferred on said railroad company, the action could not be maintained, and a nonsuit was ordered by the court, said nonsuit to stand, or to be set aside and the cause stand for trial, according to the opinion of the superior court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Bell

Text extracted by OCR from a scanned original; check the original for exact wording.

Bell, J.

We think a careful comparison of the statutory provisions bearing upon this case, will furnish the rule for its decision. The Revised Statutes, ch. 57, § 1, prescribes the liability of towns. “ In case any special damage shall happen to any person, or to his team or carriage, by reason of the obstructions, insufficiency or want of repair of any highway or bridge in any town, the person injured shall recover his damage in any action against such town.”

*208 The- second section following and the fifth section of chapter 59, give to the town a remedy over. “ The town shall have a remedy over against any surveyor of highways, through whose fault or neglect the said damage happened.” “ If any person shall place in any highway or street any timber, lumber, stones, or anything whatever to the incumbrance or obstruction thereof, he shall be liable to the town for all damages and costs, which said town may be compelled to pay to any person who has sustained damage by reason of such incumbrance or obstruction.”

These provisions point out the general policy of the law, which is to subject the town to the action of the party who suffers damage from the “ obstructions, insufficiency or want of repair of a highway,” and leave the town to obtain its indemnity from those through whose neglect or misconduct the defect of the highway has arisen.

It is a settled principle, that any person who places an obstruction in a public highway, or causes any defect in it, is, at common law, liable to any person who sustains a special damage from that cause. Woolrich on Ways 53; Williams’ Case, 5 Co. Rep. 73; 1 Ch. Pl. 126; and we may well suppose that one motive, perhaps a principal one, for the statute provision imposing this liability on towns, was to avoid the constantly recurring question, whether the party in fault was the town or some other party, and the consequent risk that many meritorious actions might fail.

The charter of this railroad is a public law. Stat. 1848, ch. 659. The provision under which they claim and exercise the right to construct their road across public highways, is found in the sixth section. “ And if said railroad shall, in the course thereof, intersect or cross any canal, turnpike, road, or other public highway, the said railroad shall be so constructed as not to obstruct the safe and convenient use of such canal, turnpike, road, or other highway.”

It is assumed, in the argument, that the railroad corporation had the right, by virtue of this charter, to obstruct the *209 highway, while their road was in process of construction; but it seems to us that this was a right not conferred upon them by this section, however it might be granted by implication, in a case where the railroad could not otherwise be built, which, it is apparent, was not this case.

The railroad is to be so constructed as not to obstruct the safe and convenient use of such highway, either while it is making, or after it is completed. The language used applies, in its natural construction, equally to both these cases. The case finds that the railroad corporation, though thus forbidden to do so by their charter, did so construct their railway that they did obstruct the safe and convenient,use of this road, at the time and place where this accident occurred, and thus occasioned the damage of which the plaintiff complains. The case further finds that the obstruction was occasioned by the laborers, employed in building the road, having filled in earth and sand about two-thirds of the distance across the highway, for the purpose of making an embankment for the rails, and this embankment, at its termination and at its sides, in the travelled part of the highway, was so steep that it could not be passed over safely with a carriage. This, then, seems to us the precise case described in section 5, before quoted, where the person, (which word includes corporations, Rev. Stat. ch. 1, § 8,) placing anything whatever in the highway, to the incumbrance or obstruction thereof, is made liable to the town for the damages and costs, which the town may be compelled to pay to any person injured. In such a case, it cannot admit of question that the town is liable, in the first instance, to the sufferer. Willard v. Newbury, 22 Vt. Rep. 458 ; Batty v. Duxbury, 24 Vt. Rep. 155 .

The nonsuit was, consequently, improperly ordered, and it must be set aside, that the case may stand for.trial.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 3 cases

View all citing references →

State Highest Courts3

Relies on it most ⓘ

Garland v. Towne55 N.H. 55 (1874) · Concurrence
Saltmarsh v. Bow56 N.H. 428 (1876)
Elliott v. Lisbon57 N.H. 27 (1876)

Most recent

Saltmarsh v. Bow56 N.H. 428 (1876)
Elliott v. Lisbon57 N.H. 27 (1876)
Garland v. Towne55 N.H. 55 (1874) · Concurrence

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	Willard v. Town of Newbury, 22 Vt. 458 (1850)	23
	Batty v. Town of Duxbury, 24 Vt. 155 (1852)	15

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list