Elliott v. Lisbon

FROM GRAFTON CIRCUIT COURT. By the statute of 1786, "in case any special damage shall happen to any person, or persons, or their teams, or carriages, by means of the insufficiency," c., damages may be recovered against the town. The statute of 1829 is almost exactly in the same words. In the Revised Statutes, ch. 57, sec. 1, the words are, — "In case any special damage shall happen to any person, or to his team, or carriage, by reason of the obstructions, insufficiency, or want of repair of any highway or bridge in any town, the person injured shall recover his damage in an action against such town." *Page 28 By Gen. Stats., ch. 59, sec. 1, "Towns are liable for damages happening to any person, his team, or carriage, travelling upon a highway or bridge thereon, by reason of any obstruction, defect, insufficiency, or want of repair, which renders it unsuitable for the travel thereon." Under these statutes, in Eliot v. Concord, 27 N.H. 204, the plaintiff was allowed to recover for expenses and loss of service occasioned to him by an injury sustained by his wife; in Conway v. Jefferson, 46 N.H. 521, for damage done to the coal with which his sled was loaded; in Wheeler v. Troy,20 N.H. 77, for injury sustained by his wife and child; in Corey v. Bath,35 N.H. 531, for injury sustained by himself and his child. In Conway v. Jefferson, SARGENT, J., says, — "But, upon examining chapter 57 of the Revised Statutes, and considering all its provisions, we have no doubt that the legislature intended to include in the term team, in the first section, the animal or animals that drew or carried the load, whether one or many, or that were driven over the highway, whether in harness or otherwise; and, by the term carriage, they intended to include whatever carried the load, whether upon wheels or runners, and also that which was carried, whether on wheels, or runners, or on horseback. I have looked in vain for legal authorities on the use and construction of these words. But the dictionary, the only authority I have found, justifies, I think, the construction I have given them." In Woodman v. Nottingham, 49 N.H. 387, the plaintiff was allowed to recover for money lost from his person. NESMITH, J., says, in his opinion, — "In our view, the fair and reasonable construction of our statute requires, or necessarily implies, that the words damage which shall happen to any person include all injury to property as well as person, the pecuniary loss to the pocket as well as the bodily loss of bone, or flesh and blood." In the case of Wheeler v. Troy, 20 N.H. 76, the court held that towns in this state are liable at common law to actions for neglect of their duties in regard to highways, and that, the statutory remedy not being as extensive as the injury, the common law remedy was not taken away. In the other cases the statutory remedy seems to have been extended, by ingenious interpretation, so as to cover the particular wrong which had to be remedied. As by Gen. Stats., ch. 69, sec. 5, it is provided that towns in certain instances shall not be liable for droves of cattle, it seems necessary to infer either that droves of cattle may be embraced in the words "person, team or carriage," or else that provision must be held to recognize the common law remedy, according to the doctrine of Wheeler v. Troy. Either way, I think there can be no doubt, on the authorities cited, that the defendant town may be liable in this action for damage happening to the colts of the plaintiff. Of course, the question of fact, whether the plaintiff was in the lawful use of the highway as a highway, adeundo et redeundo, and whether he was in the exercise of sufficient care, will be open to be determined by the jury. *Page 29