Opinion
Decided August, 1878.
A traveller may have an action for injuries received from a defective highway, although thrown by the defect upon a nuisance therein, maintained by him; but he cannot recover for the enhancement of the damages occasioned by the nuisance.
CASE, for injuries on a highway. The plaintiff occupied a cellar as tenant on Spruce street in Manchester. The entrance to the cellar extended into the sidewalk, and was a nuisance.
The entrance existed when the plaintiff leased the cellar; but he, under the direction and as the servant of the landlord, put in new stairs, and placed a plank at the top to stop the water.
The plaintiff's evidence tended to show, that as he was passing along the sidewalk, near the entrance, he tripped on a stone or hole in the sidewalk, and was thrown down the entrance and injured.
The defendants' evidence tended to show that the plaintiff tripped on the plank and was thrown. Verdict, by consent, for the defendants; a new trial to be granted if the plaintiff can maintain the action on his evidence.
Bartlett Mills and Stevens Parker, for the plaintiff.
J. Smith and Sulloway, for the defendants.
If the plaintiff tripped upon a stone, or a hole in the sidewalk, that rendered the same insufficient, and in want of repair, and was inadvertently thrown upon the nuisance through no want of ordinary care on his part, he may recover such damages as were the direct and natural result of such defective sidewalk, but not for any increase of damages occasioned by the nuisance which he maintained.
New trial granted.
STANLEY and CLARK, JJ., did not sit.