Boynton v. Somersworth , 58 N.H. 321 ( 1878 )

The plaintiff's injuries having been caused by a defective highway for which the defendants were in fault, the plaintiff is entitled to recover all damages resulting therefrom, unless such damages resulted in part from his own negligence. The degree of care and prudence required to be exercised by the plaintiff in the selection of a physician and surgeon, and the means used for his recovery and cure from his injuries, are the same as a traveller upon the highway is required to exercise in the selection of his horse, harness, carriage, and manner of driving. Tuttle v. Farmington, ante, 13. He is required to use ordinary care and prudence in all these particulars — such care and prudence as mankind in general exercise. Tucker v. Henniker, 41 N.H. 317. If he do this he is in no fault; and it is no defence, justification, or excuse for the defendants that the plaintiff's injuries, caused primarily by the defendants' negligence, have been aggravated and his recovery delayed by causes for which the plaintiff was not responsible. Collins v. City of Council Bluffs, 32 Iowa 324; S.C., 7 Am. Rep. 200; Lyons v. Erie Railway Co., 57 N.Y. 489. Where the traveller is in no fault, and the injury is the combined result of accident and of the neglect of the town to repair the highway, the town is liable. Winship v. Enfield, 42 N.H. 197; Baldwin v. Turnpike Co., 40 Conn. 238. So, although the vices of the horse or the defects of the carriage may have contributed to the injury, if they were unknown to the traveller and he was in no fault for not knowing them, and if the defective highway contributed to the result, and if the accident would not have happened if the highway had been sufficient, the town is held liable, provided the traveller is without fault. Clark v. Barrington, 41 N.H. 44; Tucker v. Henniker,41 N.H. 317; Hunt v. Pownal, 9 Vt. 411.

The fact that the plaintiff was a physician and surgeon might enable him to make a judicious selection in the employment of his medical attendant, but it did not make him answerable for the success of his treatment, or require him to treat his own case. The jury were allowed to consider that fact in determining whether the plaintiff had exercised ordinary care. The instructions were sufficiently favorable to the defendants.

Judgment on the verdict.

FOSTER, J., did not sit.