Fairfield v. Amherst

Cushing, C. J. This case expressly reserves for the consideration of the court the exercise of discretion in the court below. It is peculiarly the province of the court at nisi prius to determine the facts on which those rulings depend which are said to be discretionary. The fact to be determined in this case was, that the situation and condition of the road had or had not remained so far unchanged as that a view of it would or would not tend to elucidate the case. The court below determined that fact against the view. I can see nothing in the evidence which would lead me to the conclusion that that determination was wrong; and I am not inclined to revise the doings of the court in that particular. In the case of Howe v. Plainfield, 41 N. H. 135, it was held that the question whether or not the officers of the town had notice was immaterial, the question being whether the defect was such as that, under all the circumstances, the town were reasonably bound to have repaired the highway. In that case, evidence that the selectmen had not notice, offered by the defendant town, was held to be rightly excluded. But certainly one of the elements for determining whether the town were reasonably *482 bound to repair might be the publicity which had been given to the defect by any talk or conversation with any of the inhabitants, whether officers or not. I see nothing in the case from which it is apparent that the talk with Jones was before or after July 13. The admission of what the plaintiff said to Jehormett was right. The object was, to identify the place where the accident happened. Ladd and Smith, JJ., concurred. Judgment on the verdict.