29 A. 557 | N.H. | 1890
Lead Opinion
The motions (1) for a nonsuit and (2) to set aside the verdict rest on the same ground, and were properly denied. It was unnecessary for the plaintiff to prove that Willis was rightfully on the defendants' track, or, if he was wrongfully there, that the defendants wantonly or wilfully ran upon and injured him. Upon the question whether the plaintiff or the defendants were entitled to a verdict, the first four special findings of the jury were immaterial. Evidence tending to prove that the defendants wantonly or wilfully drove their engine upon Willis was irrelevant, except perhaps on the question of damages (Fay v. Parker,
Assuming that Willis was competent to act as a person of average prudence would, the questions for the jury were, — (1) Could the defendants by ordinary care have prevented the accident? If they could not, they were without fault and not liable. If they were in fault, (2) Could Willis, notwithstanding their negligence, have escaped injury by the exercise of like care? If he could not, the verdict would be for the plaintiff, and if he could, for the defendants. Nashua Iron and Steel Co. v. Railroad,
Judgment on the verdict.
ALLEN, J., did not sit: the others concurred. *321
The defendants conceded the correctness of the foregoing opinion as the case then stood, but moved for a rehearing, and in support of the motion procured amendments to the case as follows:
1. The defendants claimed at the trial, as a general ground for their motion for a nonsuit, that there was no evidence to show that they were not in the exercise of due and ordinary care at the time and place of the accident, and that there was no evidence to warrant the jury in finding a verdict for the plaintiff; also, that there was no evidence to show that the decedent was in the exercise of due care, or upon which the jury could legally find a verdict for the plaintiff.
These grounds for a nonsuit, among others stated in the case, were urged by the defendants' counsel; and they did not understand that these, or any legitimate grounds in support of their motion, were waived by a statement of other special grounds only as made in the case.
The trial proceeded on the ground that the deceased was sui juris, excepting that on the question of his reasonable care the jury were instructed to take into account his age, intelligence, and experience, and the fact that he went where he did by the plaintiff's direction.
2. Among other things, the court instructed the jury that to entitle the plaintiff to recover he must show by a balance of evidence that the decedent, Willis Felch, was rightfully on the track of the railroad at the place of the injury at the time of the accident, and was injured by negligence or want of reasonable care on the part of the defendants; or, if not rightfully at the place of the injury on the railroad track, he must show that he was wantonly or recklessly run upon and injured. If the decedent was rightfully there, and the defendants inflicted the injury through want of ordinary care, that is, through negligence, and there was no want of reasonable care on the part of the plaintiff or of the decedent, which proximately contributed to the injury, the plaintiff can recover.
If the decedent was not rightfully there, and the defendants' agents saw him, or under the circumstances ought to have seen him, and by the use of such means as were in their power might have avoided the injury and did not, the plaintiff can recover. That is, although the plaintiff may have been wrongfully there still, if the defendants' agents knew it, or in the ordinary course of the performance of their duties ought to have known it, and might have avoided the injury and did not, that is, wilfully, wantonly, or recklessly committed the injury, the defendants are liable. But if the decedent was wrongfully there, and the defendants' agents did not wantonly or recklessly injure him, that is, did not know seasonably that he was there so as to have avoided inflicting the injury, and after they did know it, or under the circumstances ought to have known it, used all the means in their power to avoid *322 the injury, the plaintiff is not entitled to recover.
If the decedent was rightfully there and the defendants performed their duties under the circumstances, if they did not run their train negligently, if there was no want of ordinary and reasonable care under the circumstances, then the plaintiff cannot recover, for he brings his action against the defendants for an injury caused by their negligence.
If the decedent was rightfully there, but want of ordinary care on his part, either in being there or in what he did, proximately contributed to the injury, the plaintiff cannot recover.
Early in the trial, on inquiry made by counsel on both sides, the court indicated the principles on which the trial should proceed, as substantially covered by the above instructions, and the trial proceeded substantially on the ground indicated.
The testimony at the trial was taken verbatim, and made a part of the case transferred. The evidence essential to the decision is stated in the opinion.
Addendum
In support of the motion for a nonsuit, two additional grounds are presented by the amendments: (1) that there was no evidence of want of ordinary care on the part of the defendants; and (2) that there was no evidence of such care on the part of the deceased.
The first ground is clearly untenable. There was direct evidence for the plaintiff "that a person standing on the track at the place of accident could be seen by one standing on the track at a point six hundred and seventy-five feet, or about forty-one rods, easterly from the place of accident;" and there was evidence tending to show that "the place of accident could be seen from a point on the track fifty-nine rods east of there, and that one elevated above the track eight or nine feet, to about the position of the engineer in running a train, could see a person at the place of the accident from a distance of seventy-one rods east of that point." There was also evidence that a train like the one in question in all respects, and running on such a track and with the same grade, could and should be brought to a stop inside of forty rods when the rate of speed is thirty-five miles an hour, and in a correspondingly shorter distance when the rate is less. Under these circumstances, it must be held that there was competent evidence of the defendants' want of ordinary care towards the deceased, and that by the exercise of such care they might have discovered him in season to have stopped the train and prevented the accident. Whether this evidence was of sufficient weight to warrant a *323
verdict for the plaintiff, is a question which cannot be considered here. In civil causes there is no particular amount or weight of evidence required to warrant the jury in determining a controverted fact. If there is any substantial evidence, the jury are to decide upon the balance of probabilities. The court, as matter of law, determine what evidence is competent for the jury to weigh, but are in no wise authorized to determine what amount or weight of competent evidence is sufficient or insufficient to convince the minds of jurors, and warrant them in determining a matter of fact in dispute between parties. The competency of the proof given in evidence is matter of law for the court, but its weight is matter exclusively for the jury. Fuller v. Rounceville,
The second ground is likewise untenable. It is not true that there was no evidence of ordinary care on the part of the deceased. On the contrary, it appears from the testimony of his brother that as soon as the deceased knew of his danger he jumped away from the track and attempted to escape. There was also evidence that the train made but comparatively little noise; that extra trains over the road were not common, and consisted mainly of wood trains, which were run at a very low rate of speed; that within the knowledge of the deceased, persons of mature years and judgment were accustomed to use the road-bed and track as he was using them; and there was nothing tending to prove that he had, or reasonably ought to have had, notice or knowledge that the pay-train was due on or about that day. These facts and considerations not only refute the defendants' contention that there was absolutely no evidence of ordinary care by the decedent, but we think they afford competent evidence of sufficient weight on which fair-minded men might arrive at different conclusions; and when this is so, it is always the right of a plaintiff to invoke the judgment of the jury.
The remaining question raised by the amendments is that of a mistrial. At the trial the plaintiff was required to prove three things: negligence of the defendants, care of the decedent, and his rightful use of the track. In the former opinion in this case, it was held that the plaintiff need prove but two of these things, namely, negligence of the defendants and care of the decedent. An unnecessary burden was therefore imposed on the plaintiff at the trial, but how this harmed the defendants we fail to discover. Everything held necessary to the plaintiff's recovery, in the opinion, was held necessary at the trial. He was required to make it more probable than otherwise that the decedent did, and that the defendants did not, exercise ordinary care; and these questions were submitted to the jury under instructions, to which no exception was taken. In no way were the defendants deprived of their right to a fair trial; but, on the other hand, they had the full benefit of every defence open to them upon the proper issues in the *324 case, and the additional benefit of a defence which was not properly open to them, and one, too, which strongly tended to defeat any recovery by the plaintiff.
To entitle the defendants to a new trial, it must appear that justice has not been done them, through accident, mistake, or misfortune, and that a further hearing would be equitable. G. L., c. 234, s. 1. The case made by the amendments does not come within either of these requirements.
Rehearing denied.
ALLEN, J., did not sit; SMITH, J., dissented; the others concurred.