Welsh v. Franklin

48 A. 1102, 70 N.H. 491

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1900
• Status: Published

Opinion

Wallace, J.

Whether the point at which the plaintiff was injured was a bridge, a culvert, or a raised sidewalk, merely, need not be definitely determined at the present time. “ It was not the design of the statute to subject the parties to the expense of two trials. ... If it appear that important questions of fact or law are involved which the petitioner intended and was reasonably entitled to litigate, and that he has been prevented through accident, mistake, or misfortune and not from his own fault, the petition is granted,” if a further hearing would be equitable. Gitchell v. Andover, 59 N. H. 363, 364; Chadbourne v. Exeter, 67 N. H. 190. It has been found as a fact that the plaintiff ought to be permitted to litigate the question in controversy between herself and the defendants. Page v. Campton, 63 N. H. 197.

The controversy between the parties may be whether the place of injury was a culvert or bridge, within the meaning of the stat- ate. This is an important question which the court at the trial term found the plaintiff should be permitted to litigate. In the trial of her suit, neither party will be concluded by the finding that the place was a bridge and not a culvert, or merely a sidewalk. It cannot be said that on a full investigation the evidence will not show the spot either a bridge or a culvert, although it may appear it is neither one nor the other.

Tlie question whether the city is liable if the accident happened from ice and snow on the surface of the planking does not arise at this time, because there was evidence to show that the accident was caused by a hole in the planking.

Exception overruled.

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