Ray v. City of Manchester

Bartlett, J. .The construction of the terms " obstructions, insufficiency or want of repairs of any highway,” used in our statute, R. S. Ch. 5701, is for the court, while the question of the existence of an obstruction within the -meaning of the term as construed by the court is one of fact for the jury, if there be competent evidence tending to show such an obstruction, Johnsons. Haverhill, 35 N. H. 74. In the present case the plaintiffs evidence did not tend to show any insufficiency or want of repair in the highway itself, and there must be judgment on the nonsuit, unless the use of the highway by boys in the manner stated in the case is evidence of an " obstruction ” within the meaning of the term as used in our statute. If this use of the highway was rightful it constituted no obstruction within the statute; Chamberlain v. Enfield, 43 N. H. 356; Winship v. English, 42 N. H. 216 ; and if the sliding of the boys was a misuse of the highway, still we do not think it was evidence of such an obstruction. The obstruction, contemplated by the statute, is in general one from or by reason of mere matter; Davis v. Bangor, 42 Me. 527; Keith v. Easton, 2 Allen 553; and the incumbrances which surveyors of highways are empowered to remove by the 59th chapter of the lie vised Statutes are those by inert matter; while in the present case the obstacle to the plaintiff’s passage consisted entirely in the acts which the boys were then doing. " Nothing is an obstruction which the town were not bound to have removed at the time of the injury, under the circumstances of the particular case;" Hubbard v. Concord, 35 N. H. 68; Palmer v. Portsmouth, 43 N. H. 265; and we are aware of no provision- of our law which makes it the duty of towns or highway surveyors to remove persons from the highway because of their misconduct there; Davis v. Bangor, 42 Me. 530; and therefore the town cannot be held liable in the present action for such misconduct. Davis v. Bangor; Young v. Yarmouth, 9 Gray 386. Nor is the case altered by the fact that this sliding was a public nuisance; for nuisances may be committed by individuals upon a highway by its unlawful use, for which they may be liable civilly or criminally, and yet these nuisances may not amount to a defect or obstruction of the highway itself; and although such acts may interfere with the right of passage, yet the town is not liable for them in an action like the present, if the highway as such is reasonably safe and convenient, needing neither repair nor amendment. Davis v. Bangor; Vinal v. Dorchester, 7 Gray, 423; Hixon v. Lowell, 13 Gray 63; Kidder v. Dunstable, 7 Gray 104; Chamberlain v. Enfield, 43 N. H. 363. In the present case it iS not easy to see why the [61] city of Manchester should be held liable because the plaintiff’s passage over Laurel Street was obstructed by the improper sliding of the boys, any more than in case his travels had been stopped by an assault and battery committed upon him in the highway. As the mere misconduct of individuals upon a highway, which itself is in reasonably safe and fit condition, or their rightful use of it, does not amount to an obstruction, for which the city is liable under the statute, the fact that such misconduct or rightful use had been known to the city will not enlarge its liability. Davis v. Bangor, 42 Me. 536. There must be judgment on the nonsuit.