Cooper v. Grand Trunk Railway

49 N.H. 209 | N.H. | 1870

Bellows, C. J.

It is well settled that the omission to join a person who ought to have been joined as a party plaintiff, can be taken advantage of in an action ex delicto, only by plea in abatement, or by way of apportionment of damages. 1 Ch. Pl. 66 ; Moulton v. Robinson, 27 N. H. 564; Webber v. Merrill, 34 N. H. 202.

The exceptions to the testimony of Edmunds as to what he told his companion, and to the testimony of Cooper as to the experience and capacity of the young men who drove the sheep, do not seem to be urged by the defendant, and we think they furnish no ground for disturbing the verdict.

The testimony of Tibbets that Mardifl had told him that the cars were running extra speed, seems to have been received to contradict Mardin, and for that purpose was competent.

The principal question is in respect to the closing part of the charge to the jury. Previous to that, the instructions appear to have been unexceptionable, and the jury were distinctly told that plaintiffs must prove that the accident was occasioned by the neglect of the defendant, and without the fault of the plaintiffs’ contributing in any degree to the same. This was sufficiently favorable to the defendant, and could hardly fail to be distinctly understood. The subsequent direction to find a verdict against the party that was most to blame, must, as a guide to the jury, be regarded as inaccurate, and also as inconsistent with the other part of the charge; and the question is, whether in view of the clear and explicit directions before given, we have reason to fear that the jury were misled. Was there danger that the jury or some of them might be led to understand that their verdict was to be against the party most to blame, even if the plaintiffs’ own fault had contributed to the injury. If so the verdict may have been based upon the finding that defendant was most to blame, and not upon the true ground, viz., the fault of the defendant and the absence of fault in the plaintiffs. It might be plausibly urged that the jury could not have understood that plaintiffs might recover, if their own fault had contributed to the injury, because it is otherwise distinctly stated; and besides in the same sentence, which' contains the language objected to, the jury are instructed that they must take the previous directions as the law of the case, and those directions are correct; and upon the whole, we think that the jury could not have been misled by this remark, coupled as it was with the direction to be governed by the law as previously given.

Persons of ordinary capacity, and we must so regard the jurors, could not fail to understand that the plaintiff could not recover, if his own fault contributed in any degree to the accident, for such was the whole drift of the charge ; nor could any juror of common intelligence fail to see that the remark in question was wholly inconsistent with the very explicit rule laid down, and so much so as to show that it was inadvertence, and not intended to be understood according to the natural import of the language.

To a lawyer’s mind, especially, it would be evident, we think, that the judge could not have meant what the language would seem to import, and if defendant’s counsel understood that the terms were used by mistake, and did not call the attention of the court to it, this would afford an additional reason for not disturbing the verdict.

Judgment on the verdict.