Cozzi v. Hooksett

Marble, J. Prior to the passage of Laws 1925, c. 52, the liability of towns for injuries caused to travelers by the defective railing of dangerous highway embankments was determined by the common-law rule of reasonableness. Ahern v. Concord, 82 N. H. 246, 248; Prichard v. Boscawen, 78 N. H. 131, 133; Seeton v. Dunbarton, 72 N. H. 269, and cases cited. Although the statute of highways had its inception in the days of horse-drawn vehicles, its provisions were held to embrace new methods of travel (Hendry v. North Hampton, 72 N. H. 351, 356) including the automobile (Richmond v. Bethlehem, 79 N. H. 78, 81). And since the essential inquiry in all cases was what the average prudent person charged with a like duty would have done under similar conditions, it was conceivable that juries might properly deem some embankments so dangerous as to require the erection of a barrier strong enough to prevent a motor-car from leaving the road. Kelsea v. Stratford, 80 N. H. 148, 152. As motor traffic became more general, state appropriations for road-building rapidly increased, and the duty of locating, constructing and maintaining the more important highways of the state eventually devolved upon the state highway department. P. L., c. 83. Laws 1903, c. 54, s. 6 exempted towns altogether from liability on account of roads made or repaired in whole or in part by the state. Grace v. Belmont, 78 N. H. 112. But even though towns had, as a practical matter, little supervision or control over the building or repair of *532 state-aided roads within their territorial borders (their rights in that regard being limited to an appeal to the governor and council from the decisions of the highway commissioner, P. L., c. 83, s. 12), the liability removed in 1903 was partially restored by Laws 1915, c. 48, s. 2, which provided that towns should be liable, in accordance with the terms of the statute, for injuries occasioned to travelers on such state-aided roads, except for the period during which state work was in progress and thirty days thereafter. P. L., c. 89, s. 4; Kelsea v.. Stratford, 79 N. H. 273. It was doubtless a recognition of this anomalous situation and the hardship likely to result to municipalities therefrom that prompted the legislature in 1925 to modify the towns’ liability, so far as embankment railings were concerned, by substituting for the common-law standard of reasonable construction a fixed mechanical standard, sufficient whatever the circumstances of the particular case. In other words: “A new rule of conduct was set up, differing from the common law” (Carleton v. Railroad, 82 N. H. 263, 266), and permitting towns “to exercise for protection from liability a degree of care less to some extent than that which had been required as the law had been administered” (Colston v. Railroad, 78 N. H. 284, 286). The language of the old statute declaring that towns were liable for damage caused by the insufficiency of culverts, sluiceways, bridges, and embankment railings, though retained in the new act, was followed by this important proviso: “Dangerous embankments shall be held to be sufficiently railed whenever the railing erected is the standard rail erected by the state highway department, or by a town, and the railing has been approved by the state highway department.” Laws 1925, c. 52, s. 2. When this section was later embodied in P. L., c. 89, s. 2, the comma following the word “town” was omitted, but this omission does not evince an intention to change the meaning of the provision by declaring that a non-standard rail shall be sufficient when approved by the highway department. This was the purport of the amendment as originally introduced; but the bill (House Bill No. 3) was not adopted in its original form. The provision in first draft was thus worded: “Provided, however, that the standard rail erected by the State upon highways or upon state aided highways shall be held to be a sufficient railing, and provided further that all railings erected by towns which shall be approved by the state highway commissioner shall be held to be a sufficient railing.” It would therefore appear that the railing specified by the state *533 highway department as standard is the requisite maximum safeguard for all dangerous embankments whether erected by the state or by a town. Approval by the department merely serves an evidentiary purpose for the town’s protection. This is indicated by section 3, which provides for the examination of railings at a town’s request, the record of the department’s approval of the railings “as standard railings” (the words “as a sufficient railing” appear in the original draft), and the use of certified copies of the record in judicial proceedings. Since a town fulfils its entire legal duty by maintaining the standard rail, it follows that this rail is the measure by which a town’s responsibility is to be tested. If, then, in a case involving injury to a traveler by the breaking of a non-standard rail, the plaintiff fails to sustain the burden of proving that standard construction would have prevented the accident, he cannot recover. See Collette v. Railroad, 83 N. H. 210; Morier v. Hines, 81 N. H. 48, 57. At common law towns were under no liability whatever to travelers for injuries caused by defective highways. Sargent v. Gilford, 66 N. H. 543; Hickey v. Berlin, 78 N. H. 69. But chapter 57 of the Revised Statutes (1842) imposed upon them a somewhat limited liability for “the obstructions, insufficiency or want of repair of any highway or bridge.” This statute was many times reenacted, but without radical amendment down to 1893. C. S., c. 61; G. S., c. 69; G. L., c. 75; P. S., c. 76. “The act of 1893 was a change of policy as to municipal liability for default in highway maintenance. It was intended to relieve towns to a large extent from such liability.” Robertson v. Monroe, 79 N. H. 336, 341. No right of action was given except to one injured while “using the parts of the highway enumerated in the section, namely, a bridge, culvert, sluiceway, or embankment” defectively railed (Wilder v. Concord, 72 N. H. 259, 261), nor for any defect which was not a part of these particular structures (Bernier v. Whitefield, 80 N. H. 245). Chapter 48 of the Laws of 1915 and chapter 52 of the Laws of 1925 very clearly indicate a continuance of this policy. Significantly, the act of 1925 does not impose upon towns an imperative duty to erect standard railings. On the contrary, it places still another restriction on the towns’ liability by providing in express terms that standard construction is sufficient construction. The language of this provision, read in the light of the history and policy of the earlier legislation on the subject (Stanyan v. Peterborough, 69 N. H. 372, 373; Clough v. Clough, 80 N. H. 462, 464; Mulhall v. Com- *534 party, 80 N. H. 194, 196, and cases cited), demands the interpretation we have given it. The act, though applicable, was not invoked in Clark v. Hampton, 83 N. H. 524, or in Hall v. Wentworth’s Location, ante, 236. The presiding justice in Clark v. Hampton instructed the jury, without objection, that the simple question for them to determine was “whether the average reasonably prudent man would have erected a railing to make this road reasonably suitable and sufficient for the travel thereon.” 397 Briefs and Cases, 309, 385. Similar instructions were given in the Hall case, but no error was claimed except on the ground that the amendment to the declaration was not properly allowed. Briefs and Cases, No. 2320. During the summer of 1927, the fence at the point where the accident to the present plaintiffs occurred had been repaired by a state highway patrolman. In making the repairs the patrolman had selected posts from a supply which had been left by the contractor who had rebuilt the road, under a contract with the state, some years before. Among the material requirements of the standard fencing adopted by the state highway department are sound posts, six inches in diameter and six feet in length, set three feet in the ground and spaced eight feet apart; and rails, six inches wide, two inches thick and sixteen feet long. There are also specifications for painting, and for coating the lower portion of the posts with creosote oil. The defendant concedes that the fence through which the plaintiffs’ car was precipitated did not conform to all these requirements. The sole question to be decided, therefore, is whether there is evidence from which it could be found that a standard railing, if erected, would have prevented the accident. There is no evidence relating to the strength of a fence of standard specifications, and it cannot be said that jurors possess any very definite information on the subject. It is common knowledge that automobiles when out of control often demolish substantial structures which impede their progress. Furthermore, no witness professed to estimate the force with which the plaintiffs’ car struck the railing. Certainly the impact could not, as in Clark v. Hampton, 83 N. H. 524, 527, be described as merely of a “glancing nature.” The car was skidding on an icy hill. A witness who observed the accident stated that the speed of the car was about fifteen miles an hour when it “hit the ice”; that the back end of the car swerved to the left and that the car then “turned clear around and went through the fence,” and that the left rear wheel “struck the fence first.” The *535 local chief of police testified that immediately after the accident he saw a mark apparently made by the rear wheel, as though the car “had gone sideways and the rim had scraped the ice,” extending from an elm tree down to the fence, a distance of ninety-four feet. Vincent Cozzi, the operator of the car, testified that he was driving about twenty-five or thirty miles an hour when he came to the top of the hill, but that he know there was ice near the foot of the hill and “slowed down” to fifteen miles an hour before reaching it; that the car was about three car-lengths from the fence when it began to skid. He said: “I put my foot on the brake and put out my clutch and it started to skid and I couldn’t do nothing with her, she skidded in all directions, and finally I was close to the fence, I don’t know which way I struck it, I think I struck it on the right hand side or left, 1 really don’t know, I know I heard a crash and down I went through ... I had the brake on all the way down, at times I put out the clutch, and I tried to push the brake harder to prevent it from going down but I was almost helpless. I could do nothing; there was nothing I could do to hold it.” And on cross-examination: “ Q. When you started to skid did you have the brake on? A. Yes. Q. Did you keep it on all the time until you went over the bank? A. Kept it on just lightly and tried to put the clutch out... Q. And did you have your clutch out during the time you were skidding? A. Yes, two or three different times.” No argument is necessary to demonstrate that this evidence, taken in connection with the absence of evidence already noted, falls far short of proving that the maintenance of a standard raffing at the point where the accident occurred “would have probably saved serious consequences to the occupants of the car.” Clark v. Hampton, 83 N. H. 524, 527. A finding to that effect would obviously be based upon sheer conjecture. And it is elementary that juries are not permitted to determine the rights of litigants in that way. Ingerson v. Railway, 79 N. H. 154, 159; Russell v. Railroad, 83 N. H. 246, 249, and cases cited. The exceptions are therefore sustained. The order in each case is Judgment for the defendant. Branch, J., did not sit: the others concurred.