Brown v. West , 75 N.H. 463 ( 1910 )

If there was evidence from which it could be found that the defendants had the general control and direction of the work of improving or reconstructing the highway, a question not decided, it was vested in them, not as principals, but as agents of the town. As agents they would not be constructively liable in an action of tort to the plaintiff, a stranger, for the negligence of their co-servants or agents. The doctrine of respondeat superior does not apply in such a case. But as individuals, and notwithstanding their agency, they would be liable if they participated in the act occasioning the injury, either by direct personal interference, or by giving directions which would make the act their own, although done by another. Hill v. Caverly, 7 N.H. 215, 218, 219; Bacheller v. Pinkham,68 Me. 253; Bowden v. Derby, 97 Me. 536; Brown v. Lent, 20 Vt. 529, 531; Nowell v. Wright, 3 Allen 166, 170; Breen v. Field, 157 Mass. 277, 279; Moynihan v. Todd, 188 Mass. 301; Barry v. Smith, 191 Mass. 76, 87-89; Farrigan v. Bevear, 193 Mass. 147, 150; Johnson v. Somerville,195 Mass. 370, 376-379; Murray v. Usher, 117 N.Y. 543; Burns v. Pethcal, 75 Hun 437, 442-444; Canfield v. Railway, 59 Mo. App. 354, 364; Stone v. Cartwright, 6 D. E. 411, 412; 31 Cyc. 1563 d.

It could be found from the evidence that the act of preparing the highway for travel and leaving it without lights on the night of the accident was negligently performed, but it could not be found that the defendants or either of them were present and participated in the act, or that they gave directions that the road should be prepared and left for the night in the way it was. As to this, it appeared that Nowell, who had been employed to superintend the construction of the road for the town, was the person present at that time and that he did whatever was done in the way of preparing the road to be left. If the town might be held constructively responsible for Nowell's act, in the absence of a statute exempting it from liability (Laws 1903, c. 54, s. 6), the defendants cannot be. "Neither principle nor authority will warrant the holding a mere middleman — an intermediate agent between the master and the direct agent — constructively responsible for the acts of the latter." Brown v. Lent, supra, 533. The defendants' exceptions are sustained.

Verdict set aside: judgment for the defendants.

All concurred.