Smith v. Inhabitants of Town of Exeter

There are two counts in the plaintiff’s writ. The first -count is on an account annexed for services -of horses and men in breaking out a certain road in defendant town from- January 9, 1912, to February 29, 1912, amounting to $38.14. The second count is brought to- recover damages under the provisions -of Sec. 62, Ob. 23, Revised Statutes, which reads as follows: “When any ways are blocked or encumbered with -snow, the road commissioner shall forthwith cause s-o much of it to- be removed or trodden down, as wil-1 render them passable. The town may direct the manner of doing it. In -case of sudden injury to ways- or bridges, he shall, without delay, cause them to be repaired. And all damage accruing to a -person in his business or property, through neglect of such road commissioner or the municipal officers- of such town, to so render passable ways that are blocked or encumbered with snow, within a reasonable time, may be recovered of such town by a special -action on the case.” A verdict of $62 was returned for the plaintiff and the -case comes up -on defendants’ motion for a new -trial-. Th-e plaintiff was clearly not entitled to- recover anything under the first count. The- services there sued f-o-r were admittedly rendered by the plaintiff without authority or direction of the town or of any person or official authorized to- bind the town therefor, and accordingly -it must be assumed that the jury were instructed that the town was not liable for those services. The verdict must there [554] fore, 'be considered as rendered under the second count. Motion overruled. P. A. Smith, for plaintiff. P. W. Holliday and D. I. Gould, for defendant.