In an action for injuries sustained by a collision with a stepping-stone, the liability of the defendant is not conclusively established by the fact that the stone was maintained by him within the limits of the highway, in violation of section 1, chapter 59, Laws 1899. Whether a stepping-stone within the limits of a highway constitutes such a nuisance as to render its owner liable in damages to a person injured by collision therewith, is a question of fact, the determination of which is dependent upon the character, location, and effect of the alleged obstruction.
REMICK, J.
A statutory nuisance, in the nature of a highway obstruction or encroachment, is not necessarily an actual nuisance. Hopkins v. Crombie, 4 N.H. 520, 525, 526; State v. Kean, 69 N.H. 122. So far as public rights and proceedings are concerned, if an obstruction or encroachment is within the terms of the statute there need be no inquiry as to its actual character, location, or effect. But to be the basis of private action it must appear that the obstruction or encroachment complained of is a nuisance in fact. This was distinctly so under the earlier statutes upon the subject (Hopkins v. Crombie, supra; State v. Kean, supra; Graves v. Shattuck, 35 N.H. 257), and a careful analysis of section 1, chapter 59, Laws 1899, convinces us that no change in this respect was thereby made or contemplated.
Whether the stepping-stone in controversy was a nuisance, for the purposes of the plaintiff's case, was, from its character and location, peculiarly a question for the jury. Hopkins v. Crombie, 4 N.H. 520, 525; Graves v. Shattuck, 35 N.H. 257, 265, 270; Tiesler v. Norwich, 73 Conn. 199; Dubois v. Kingston, 102, N. Y, 219, — 55 Am. Rep. 804; Dougherty v. Horseheads, 159 N.Y. 154; Robert v. Powell, 168 N.Y. 411; Allegheny v. Zimmerman, 95 Pa. St. 287, — 40 Am. Rep. 649; Wellington v. Gregson, 31 Kan. 99, — 47 Am. Rep. 482; 15 Am. Eng. Enc. Law 491.
As the plaintiff's request called for instruction that the stepping-stone was, by mere force of the statute and regardless of its character, location, or effect, a nuisance for the purposes of his case, it was properly denied. No exception was taken to the instructions given, and in the absence of evidence to the contrary they were presumably correct. Mitchell v. Railroad, 68 N.H. 96, 117.
Exception overruled.
All concurred.