Downes v. Hopkinton

40 A. 433, 67 N.H. 456

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1893
• Status: Published

Opinion

Smith, J.

If it be assumed that the rock which the surveyor was blasting was a defect within the meaning of the statute {P. S., c. 76, s. 1), it was not the cause of her injuries. She did not come in collision with it, was not upset by it, her horse was not frightened by it, nor were any of the fragments, when it was blasted, thrown upon her or upon her horse. They were not within sight of it when the blast occurred. The sole cause of the accident was the sound of the blast.

If the surveyor was guilty of negligence in not giving seasonable notice of the blast to the plaintiff, the law affords her a remedy, if injured thereby, in an action against him. But a town is not liable to a traveller injured by the negligence of a highway surveyor engaged in repairing a highway. Hardy v. Keene, 52 N. H. 370; Wakefield v. Newport, 62 N.H. 624. The highway liability of towns to travellers is created by statute. They are liable only for injuries resulting from defects which render the highway unsuitable.

Whether a highway is or is not defective is a question of fact for the jury. But the construction of the terms of the statute (P. S., c. 76, s. 1) is for the court. Ray v. Manchester, 46 N. H. 59, 60; Johnson v. Haverhill, 35 N. H. 74. There is no competent evidence in this case of any defect in the highway which caused the plaintiff’s injuries. A town is not liable for damage done by its fire department (Edgerly v. Concord, 59 N. H. 78, and cases cited S. C., 62 N. H. 8), nor for injuries to a traveller by coasting in the street (Ray v. Manchester, 46 N. H. 59), nor for injury occasioned by the negligent removal of a flag-staff. Wakefield v. Newport, 62 N. H. 624. As the facts reported are not sufficient evidence of a defect within the meaning of the statute, the order must be

Petition denied.

Blodgett, J., did not sit: the others concurred.