FROM MERRIMACK CIRCUIT COURT. The referee's report does not show, and the referee has not found, that the surveyor, when assisting the plaintiff in making his way through the snowdrift, was in the service of the town, or engaged in the performance of his duties as highway surveyor. I think the evidence tends to show that he was not so engaged. The referee does find that the town was not in fault in permitting the condition of the highway to be such as it was on that morning.
The surveyor had made arrangements to make the highway passable, and so informed the plaintiff. The plaintiff, by waiting three quarters of an hour, which is not found by the referee to be an unreasonable time, would have had a practicable road to pass over. The plaintiff was too impatient to wait for this, and the surveyor good-naturedly undertook to help him. The evidence does not tend to show, and the referee has not found, that the surveyor in this act was in the employment of the town at all.
If he were so, he was engaged in putting the highway in repair; and until he had completed his job, and, as it were, opened the road for travel, it appears to me that the town could not be guilty of negligence.
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