## Facts

- Tucker traveled by horse-drawn carriage on a public highway in the Town of Henniker.
- The highway allegedly contained a dangerous defect for which the town was responsible to repair or guard.
- Tucker’s carriage encountered the defect, causing an accident and personal injuries.
- Tucker sued the town for damages based on defective-highway liability.
- At trial, the jury was instructed to evaluate Tucker’s contributory negligence by comparing her conduct to that of an ordinarily prudent person in like circumstances (including the manner of travel).
- The jury returned a verdict for Tucker, and the town appealed, principally challenging the contributory-negligence instruction.

## Issues

1. What standard of care governs a traveler’s conduct in a defective-highway action, and whether the jury instruction properly stated that standard.
2. Whether a municipality is liable for injuries caused by a highway defect when the plaintiff exercised ordinary care and did not contribute to the accident by her own fault.

## Decision

- The Supreme Court of New Hampshire affirmed the judgment for Tucker.
- The court upheld the challenged jury instruction as a correct statement of the ordinary-care standard.
- The town’s exceptions were rejected, leaving the plaintiff’s verdict intact.

## Legal Principles

- A traveler using a public highway must exercise ordinary care—i.e., the care a reasonably prudent person would use under like circumstances.
- Contributory negligence bars recovery if the plaintiff failed to use ordinary care and that failure proximately contributed to the accident.
- A town may be held liable for injuries caused by a dangerous highway defect when the traveler used ordinary care and the defect caused the injury.
- Liability focuses on fault contributing to the accident; later aggravation of injuries by causes not attributable to the plaintiff’s fault does not excuse the municipality’s responsibility for the original harm.

## Conclusion

The court sustained a plaintiff’s verdict against a town for injuries from a highway defect, holding that the correct measure of the traveler’s conduct is ordinary care under the circumstances and that recovery is barred only if the plaintiff’s lack of such care contributed to the accident.


Tucker v. Henniker, 41 N.H. 317 (N.H. 1860)