136 A. 254 | N.H. | 1926
A motion to set aside a verdict "because it was against law" raises no question of law which has not previously been saved by exception. Smith v. Company,
The exception to the denial of her motion to set aside the verdict on the ground that it is against all the evidence is predicated upon the premises (1) that there was conclusive evidence of the defendant's negligence and (2) that there was no evidence of the plaintiff's negligence. The plaintiff, in argument, proceeds on the erroneous assumption that her exception raises the same question of law as. would have been presented by an exception to the denial of a motion for a directed verdict made at the close of the evidence. It is a sufficient answer to the plaintiff's contention that upon this assumption she could not prevail. As both premises would be essential to support an exception to the denial of a motion for a directed verdict, she would fail since the record clearly discloses evidence from which the plaintiff's negligence might be found.
The defendant's automobile collided with the plaintiff, a pedestrian, while both were traveling westerly upon the highway leading from Kittery, Maine, to the Portsmouth memorial bridge. The. place of the collision is on the main route of automobile travel between Portland and Portsmouth. The accident occurred at 7:30 on the evening of September 30, 1923, at a very dark spot. The portion of the highway usually traversed by vehicles was surfaced with macadam or tarvia to a width of seventeen or eighteen feet. To the right of the macadam, as the parties were traveling, was an abandoned street railway track which had been partially filled in with dirt, and, although a little rough, was commonly used as a pathway by pedestrians. There was also a narrow dirt path upon the opposite side of the highway which was likewise used by foot, travelers. The defendant's evidence tended to show that he was proceeding upon the macadam roadway at a speed of between fifteen and seventeen miles per hour; that his vision of the roadbed for a distance of about 250 feet was cut off by the combined effect of the lights of an opposing car, and of the lights of a car approaching from the rear reflected by his windshield, both of which were blinding; that he first saw the plaintiff when within two or three feet of her, and too late to avoid a collision; that the plaintiff, with her back turned to the traffic, was traveling upon the macadam at a distance of three or four feet from the nearest rail of the track and in the line of the defendant's right mud guard. The plaintiff's evidence tended to show that she was traveling on the abandoned railway track. It was otherwise in direct conflict *445 with the defendant's evidence. The plaintiff knew of the use by pedestrians of the abandoned railway.
If there was competent evidence that the accident happened in the manner the defendant contends, it must be conceded that such evidence would support a finding of the jury that the plaintiff was negligent. The plaintiff's position, however, is that there was no competent evidence that she was traveling on the macadam roadway. The only evidence that she was so traveling was the testimony of the defendant and his fellow passenger. The plaintiff's contention is that it conclusively appears from the further testimony of these witnesses that they had an insufficient opportunity to observe and determine her situation. It is argued that, as they were admittedly traveling seventeen miles per hour, or twenty-one feet per second, and first saw the plaintiff when within two or three feet of her, mathematical calculation shows that the period of their observation was limited to one-seventh of a second; that it is a matter of common knowledge that even trained observers do not attempt to clock time within a fifth of a second. It is a sufficient answer to this contention, that, if such a limitation upon the exercise of the human vision were a fact, and if such fact were a matter of such established common knowledge that this court could take cognizance of it, it would not help the plaintiff. The testimony of the witnesses that they saw the plaintiff traveling on the macadam roadway is entitled to as much credit at least as are their estimates of speed and distance. The jury may well have found that they erred in one or both of such estimates, in which case the plaintiff's mathematical deduction fails; and with it, falls her essential premise.
But the plaintiff's exception to the denial of her motion to set aside the verdict as against "all evidence" (as distinguished from the "weight of evidence") must be overruled because of the well-settled rule of procedure in this jurisdiction that an objection to the want of evidence upon a vital issue cannot be first raised by a motion to set aside a verdict.
The question whether there is any evidence to sustain a verdict is a question of law, Coles v. Railroad,
Such has been the holding in cases where it was claimed that there was no evidence in support of a vital issue. Haydock v. Salvage,
The rule is based upon the sound reason that justice requires that the question should be raised while, theoretically at least, the deficiency may yet be supplied. Elwell v. Roper, supra; Head Dowst Co. v. Breeders' Club, supra; Smith v. Company,
The application of the rule is, however, limited to the reason for it. Therefore, where the deficiency is incapable of being supplied, the rule ceases to apply. Smith v. Company, supra; Derosier v. Company, supra. So also when a party has seasonably protected his rights before verdict, the presumption of waiver is negatived, and he may raise the question of the want of evidence by a later motion to set aside the verdict. Ingerson v. Railway,
As the plaintiff had waived her right to question the want or *447 insufficiency of the defendant's evidence by her failure to make seasonable objection, it is plain that her motion, so far as it rests upon such grounds, raised no issue of either law or fact.
The plaintiff's motion to set aside the verdict as against the "weight of evidence" presented a different question, which has been many times stated, namely, whether it appears that the trier of fact unwittingly fell into a plain mistake, or that the verdict was produced by passion, partiality or corruption, Marshall v. Morin,
The question of the excessive preponderance of the evidence, upon a motion addressed to the weight of evidence primarily presents a question of fact for the presiding justice. The fact, being found, is so controlling that it has been sometimes said that no question of law is involved. Fuller v. Bailey,
The argument that the entire absence of proof upon one side of a vital issue conclusively establishes a preponderance of opposing evidence when there is any such evidence, and logically should be as valid a basis for setting aside a verdict as an excessive preponderance in cases where there is conflicting evidence, loses sight of the fact that the rule governing such a situation is a salutary and justifiable procedural regulation which gives adequate protection to a party seasonably protecting his rights; while the rule which allows a verdict to be set aside, upon a motion directed against the weight of the evidence, is designed to cover only flagrant cases when there is some conflicting evidence, but where such evidence is so preponderantly in favor of the losing party as to disclose mistake, partiality or corruption on the part of the triers of fact.
The distinctive functions of the motions to set aside a verdict based upon the two grounds, namely, (1) for the want of evidence and (2) as against the weight of the evidence, have become a part of our settled procedure, and such procedure has been found to work justice. The restricted field in which any motion to set aside a verdict has any legitimate place, when rights have not been previously saved, and the usually resulting want of merit therein, probably explain why such motions have been so summarily disposed of, sometimes without an accurate statement of the principles upon which the conclusions were justified. Disregarding the confusion *449 of terms, however, it is believed that the cases where the issue has been the setting aside of a formal verdict, are for the most part reconcilable with the principles herein set forth. There is nothing in the record indicating that the trial justice erred in the denial of the plaintiff's motion.
Exception overruled.
All concurred.