
    Merrimack, )
    Feb. 5, 1907.
    Drew v. Bow.
    A town is not liable for injuries caused by ice which has accumulated in the traveled part of a road by reason of a defective gutter at the side of the highway.
    Petition, under section. 8, chapter 76, Public Statutes, for leave to file a statement of claim for damages resulting from a defect in a highway. The defendants negligently permitted a gutter at the side of a, highway to remain in such condition that water accumulating therein overflowed the roadway and froze, thus causing the defect complained of. At the April term, 1906, of the superior court, the petition was dismissed by Peaslee, J., on the ground that the defendants were not liable for injuries which the plaintiff sustained by slipping on ice in the traveled part of the highway, and the plaintiff excepted.
    
      Martin Howe, for the plaintiff.
    
      Taggart, Tuttle, Burroughs Wyman, for the defendants.
   Young, J.

“ The changes introduced into the statute [P. S., c. 76, ss. 1, 2, by Laws 1893, c. 59] indicate a purpose to greatly limit liability; . . . 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, insuffiency, or want of repair in a structure the defect in which is made a ground of liability.” Wilder v. Concord, 72 N. H. 259, 262; Wentworth v. Pittsfield, 73 N. H. 358, 360; Miner v. Hopkinton, 73 N. H. 232; Owen v. Derry, 71 N. H. 405 ; Boyd v. Derry, 68 N. H. 272. If the defect in the structure complained of must be the immediate (Farnum v. Concord, 2 N. H. 392; Ford v. Braintree, 64 Vt. 144) — not the proximate — cause of the plaintiff’s injury, he cannot recover, for the immediate cause of his injury was the ice in the road — not the condition of the gutter. It will not be necessary, however, to decide that question, for the gutters at the sides of the ordinary highway are not sluiceways within the meaning of section 1, chapter 59, Laws 1893, if the language the legislature used is given its ordinary meaning. A sluiceway is an artificial channel made to draw off water, either naturally or artificially collected. Cent. Dict. If this is the sense in which the legislature used that word, and there is nothing to show they intended to give it any other meaning, the water-course intended must be one either in (Welsh v. Franklin, 70 N. H. 491), or across, -a highway; for the statute only makes towns liable for injuries happening to a person traveling upon — not near — a defective sluiceway. The fact that the structures common to all highways for collecting surface water and keeping it out of the traveled part of the road are usually called ditches or gutters tends to the same conclusion; for it is probable that if the legislature had intended to make towns liable for injuries caused by the condition of such structures, they would have used apt words to express that intention, and would not have spoken of them by the name commonly used to describe structures intended to dispose of such water after it has been collected.

Exception overruled.

Bingham, J., dissented : the others concurred.  