26 A.2d 23 | N.H. | 1942
1. The contention of the plaintiff "that the defendant's conduct prior to and during the trial was such that he is not entitled to argue against the plaintiff's right of action or to assert error in the trial" cannot be seriously considered in view of Public Laws, c. 315, s. 8. That section provides that a bill of exceptions which is "conformable to the truth of the case shall be allowed by the presiding justice and be entered in the supreme court for determination." Under this section the only question for the court to decide is whether the bill is "conformable to the truth of the case." If it is, it must be allowed. By his order allowing the present bill, the presiding justice has necessarily found that it is conformable to the truth of the case, and this being so, it was his duty to allow it. The conduct of the defendant and his trial counsel upon which the plaintiff's argument is based, was wholly immaterial.
2. The motion by which Vialette E. Bagley, the widow of the deceased was to be substituted as party plaintiff in place of the administrator, was properly granted. Herlihy v. Little,
3. It has been thought that the motions for a nonsuit and directed verdict raise the question of the plaintiff's right to maintain this action under the Massachusetts statute, which was decided in Hill v. Railroad,
In support of the motions the defendant further argues as follows: "The risk occasioned by Bagley's conduct which resulted in his death was not one which was reasonably to be expected by the defendant. There was no occasion for the defendant to anticipate that the plaintiff would sleep in the cab with the motor running and all windows closed." There is no conclusive evidence that the deceased went to sleep before he was overcome by gas. There is evidence to charge the defendant with knowledge of the custom of truck drivers to sleep in their cabs when overtaken by night away from home. But the complete answer to this argument is found in the law of Massachusetts, which has been stated as follows: "It is sufficient if it appears that the negligent act of the defendant would probably cause harm to another, even though the precise manner in which it occurred *110
could not have been foreseen." Guinan v. Company,
4. Subject to the defendant's exception, the plaintiff was permitted to testify that when they were married in 1933, her husband had no property; that they had one child, five years old, and that her husband was accustomed to help her in doing the housework. It is now argued that since, under the Massachusetts statute, damages are "to be assessed with reference to the degree of his [the defendant's] culpability or that of his agents or servants," (Gen. Laws of Mass. (Ter. ed.), c. 229, s. 5), the admission of the foregoing testimony was error.
The Massachusetts court has apparently had little occasion to consider what factors enter into the problem in determining the "degree of . . . culpability" under the statute here involved. They have made it abundantly clear that the loss to the survivors of the deceased is not the test. Boott Mills v. Railroad,
Here the defendant was findably chargeable with knowledge of the decedent's financial situation and family status. The parties were near neighbors in the country village of Raymond. The plaintiff testified that the defendant's place of business was "right near my house." Both as an employer and as a neighbor, therefore, the defendant might be found to have had knowledge of the situation of the deceased and, for that reason, to be chargeable with knowledge of the probable consequences of his conduct in furnishing to an industrious young man of good disposition who was the sole support of a wife and child, a defective truck which was well calculated to cause his death. The evidence was properly admitted. It "gives character to the wrongdoing of the defendant" and he was protected by the charge against any misuse of it by the jury. They were told that "damages can be assessed in this suit only according to the degree of culpability of the defendant . . . and in determining the defendant's fault or culpability, you should weigh, of course, all the circumstances, the character of the employment, the capacity of the man employed, and the dangers to which carelessness might expose the employee."
In accordance with the foregoing considerations it is ordered that there be
Judgment on the verdict.
All concurred.