Whether a person was unavoidably prevented from filing the claim for damages required by Gen. Laws, c. 75, s. 7, is a question of fact to be determined at the trial term.
Travelling on Sunday for pleasure will not prevent the traveller from recovering for injuries received from a defective highway.
SMITH, J.
It is a question of fact whether the plaintiff was unavoidably prevented from seasonably filing a sufficient claim for damages: so, also, whether manifest injustice would be done if not now allowed to file it. These questions have been determined at the trial term, and the action of the court at that term in the determination of pure questions of fact are not ordinarily reserved, and if reserved, are not generally considered at the law term. Fuller v. Bailey, 58 N.H. 71. If these questions can be said to be mixed questions of law and fact, we discover no legal error in the result which was reached. Bolles v. Dalton, ante 479.
Whether travelling on Sunday is or is not a violation of law is immaterial. Such a traveller may recover for injuries received from a defective highway if the town is otherwise liable, for the illegality of the act in no way contributes to the accident. Norris v. Litchfield, 35 N.H. 271, Corey v. Bath, 35 N.H. 530, 541.
Case discharged.
FOSTER, J., did not sit: the others concurred.
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