If a bridge were to be treated as obstructed merely because the way over it was so, then the whole of the original liability as to bridges would exist, and the attempted limitation in the act of 1893 would come to nothing. Once it is conceded that the insufficiency may relate to the way and not to the structure of the bridge, the whole field of liability is open. Not only the pile of rubbish (Parsons v. Manchester, supra) or logs or lumber (Manchester v. Warren, supra; Manchester v. Quimby, 60 N.H. 10; Plummer v. Ossipee, 59 N.H. 55; Palmer v. Portsmouth, 43 N.H. 265), causing actual physical obstructions in the path of travel, but also sound-producing elements of the situation, like falling timber (Chamberlain v. Enfield, 43 N.H. 356) or squealing pigs (Bartlett v. Hooksett, 48 N.H. 18) and horse-frightening objects (Darling v. Westmoreland, 52 N.H. 401), could be treated as still being grounds for liability, since each would cause an unsuitableness of the way over the bridge. Nor would the somewhat crude test of actual physical contact with the structure save the situation.
Consequently, liability existed for a condition produced by the carelessness of third parties, causing obstructions upon or near the traveled path at any point in the highway, upon the ground that the town ought to have known of and obviated the danger before the accident, although the obstructions were no part of the highway construction maintained by the town. Parsons v. Manchester, 67 N.H. 163; Manchester v. Warren, 67 N.H. 482; Manchester v. Quimby, 60 N.H. 10; Plummer v. Ossipee, 59 N.H. 55; Gale v. Lisbon, 52 N.H. 174; Darling v. Westmoreland, 52 N.H. 401; Bartlett v. Hooksett, 48 N.H. 18; Palmer v. Portsmouth, 43 N.H. 265; Chamberlain v. Enfield, 43 N.H. 356. The changes introduced into the statute indicate a purpose to greatly limit liability arising in this way, if not to entirely remove it; for no liability can arise at any portion of the highway other than those enumerated, and not then because the obstruction renders the highway unsuitable, unless the matter complained of constitutes an obstruction, defect, insufficiency, or want of repair in a structure the defect in which is made a ground of liability. Under the repealed statute, carelessness of a surveyor or some private individual, while engaged in doing a lawful work in a highway, might produce an unsuitable condition for which while the work was in progress the town might be liable, although not liable for the negligent act itself.
The plaintiff seeks to recover of the defendants at common law (Elliot v. Concord, 27 N.H. 204) for the same injury for which he failed to recover of the town under the statute. G. L., c. 75, s. 1. Had he obtained judgment against the town, the defendants, if they placed the car in the highway, would have been bound to reimburse the town for the damages and costs. G. L., c. 76, s. 7; Elliot v. Concord, 27 N.H. 204; Littleton v. Richardson, 34 N.H. 179; Manchester v. Quimby, 60 N.H. 10. Notice of the pendency of the first action was given to the defendants by the town for the purpose of making the facts determined by the judgment therein conclusive evidence against the defendants in an action upon their liability to the town, if one became necessary. Lebanon v. Mead, 64 N.H. 8. The defendants had a right to appear in the action and assume its defence.