3 A.2d 106 | N.H. | 1938
The plaintiff alleged that while he was employed by the defendant in its quarry he suffered an internal injury from the excessive vibration of a defective pneumatic drill, or jack hammer which the defendant's superintendent had promised to have repaired. *536 In the original declaration filed with the writ the date of this injury was set out as "on or about the first day of November 1933." About five weeks before trial in the Superior Court the plaintiff's deposition was taken, and his counsel at that time announced that in view of a copy of the defendant's payroll, which he then saw for the first time, he would file a motion to amend his declaration by alleging the date of injury as on or about July 25, 1934. Such a motion was later filed and allowed and the defendant made no objection. The plaintiff's second motion to amend by alleging the date of injury as on or about June 25, 1934, instead of on or about July 25 of that year, to the granting of which the defendant did except, was made on the day of trial when counsel for the plaintiff for the first time saw an authenticated copy of the defendant's pay records.
Counsel for the defendant admits that this motion to amend presented a question for the discretion of the court below (P. L., c. 334, s. 9; Bacon v. Thompson,
In his deposition the plaintiff did not pretend to be able to fix the date of his injury by reference to a calendar, but said that he calculated it only by relating his injury to a change in the nature of his work. He said that his injury occurred about half an hour before he ceased work on the afternoon of the last day of his operation of a jack hammer, and that after that date he worked for the defendant as a boss on the night shift, his work in this supervisory capacity continuing until the quarry shut down late in November. From a certified copy of the defendant's payroll introduced in evidence, it clearly appeared that the actual date of this change in the nature of the plaintiff's employment occurred on June 27, 1934. From these statements made five weeks before trial the defendant must have known that the plaintiff in setting the date of his injury was not relying upon his own memory but upon the data contained in the defendant's pay records. Since this data was at all times in the defendant's *537 possession, and since it had ample notice before the trial began that the plaintiff was relying upon it instead of upon his recollection, it was reasonable for the court to find that if the defendant was surprised at all by the plaintiff's last-minute motion to amend, it was surprised only because of its failure to discover the obvious. The defendant's knowledge before trial of the manner in which the plaintiff arrived at the date of his injury, and its possession of the facts upon which it knew the plaintiff relied in calculating that date, provide a sufficient basis in reason for the ruling of the court granting the plaintiff's motion to amend.
The defendant's contention that the court abused its discretionary powers, (Wisutskie v. Malouin,
The defendant contends that the plaintiff could not have been seriously injured because he continued to work in the quarry until it shut down in November. This argument has persuasive force but it is not determinative. The reason for this is the evidence that immediately after his injury the plaintiff's work became supervisory rather than manual and the further evidence that when the plaintiff was laid off he was in a state of complete physical prostration.
The defendant further contends that its motion to set the verdict aside should be granted because the jury were influenced by passion and prejudice and fell into a plain mistake. This ground cannot avail the defendant here because by denying the motion the Presiding Justice impliedly found that the trial was fair. State v. Hale,
During the course of his argument counsel for the plaintiff referred *538
to one of the defendant's medical experts as a "fifty dollar a minute man" when the only evidence was that this expert proposed to charge the defendant fifty dollars for his services if he was not detained in court over half an hour. Counsel for the defendant objected to this characterization and the court ordered the jury to disregard it but nevertheless an exception was requested. Even though the statement was beyond the proper range of forceful rhetoric in commenting upon the evidence, what was said furnishes no ground for disturbing the verdict because there is nothing to indicate that the jury failed to heed the court's warning to disregard it. Hamlin v. Philbrook,
The defendant's exceptions to the court's rulings on the admission of evidence have been neither briefed nor argued and are understood to have been waived.
Judgment on the verdict.
BRANCH, J., was absent: the others concurred.