36 A. 555
Supreme Court of New Hampshire Coos.
Decided June, 1894.
No action lies against a person causing a defect in a highway for an injury resulting therefrom, if the laying out of the highway has been quashed upon certiorari.
CASE, for injuries arising from a defect caused by the defendants in a highway. To show the existence of the alleged highway, the plaintiff introduced in evidence, subject to the defendants’ exception, the record of the laying out referred to in Grand Trunk Railway Co. v. Berlin, ante, p. 168. That case is made a part of this. The plaintiff’s evidence tended to show that while he was traveling upon this highway with a horse and carriage, the horse took fright at a car left by the defendants upon their branch railroad within the limits of the highway, in consequence of which he was thrown out of the carriage and injured. There was
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a verdict for the plaintiff which the defendants moved to set aside.
Twitchell Libby, for the plaintiff.
Almon A. Strout (of Maine), Robert N. Chamberlin, and Bingham, Bingham, for the defendants.
CHASE, J.
The decision of this cause was deferred to await the determination of the action, Grand Trunk Railway Co. v. Berlin, ante, p. 168. By the judgment in that case, it is established that there was, as against these defendants, no lawful. highway at the place of the alleged incumbrance.
Verdict set aside.
SMITH, J., did not sit: the others concurred.