Holyoke v. Grand Trunk Railway, 48 N.H. 541

Holyoke v. Grand Trunk Railway

48 N.H. 541 | N.H. | 1869

Nesmith, J.

The plaintiff claimed indemnity for injuries received *545by him while a passenger in the cars of the defendants’ road, as located in this State. The averments in his writ appear to be such as are generally used in such cases.

Some question is made as to plaintiff’s right to recover the damages claimed by him under his general declaration. It seems to be settled, that he is entitled to recover one compensation for all his injuries, past and prospective, in consequence of the defendants’ wrongful or negligent acts. Damages are presumed to embrace indemnity for actual nursing and medical expenses, also loss of time or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering both of the body and mind, wdiich are shown to be the immediate and necessary consequences of the injury wrongfully received. Also exemplary damages may sometimes be recovered in this form of action, embracing cases of gross negligence. Hopkins v. Atlantic & St. Lawrence Railroad, 36 N. H. 14; Shaw v. The Boston & Worcester Railroad, 8 Gray 82; Ransom v. The New York & Erie Railroad, 1 E. D. Smith, or 15 N. Y. 415; Theobald v. The Railway Passenger Insurance Company, 26 Eng. Law. & Eq. Reports 432; 18 Adolphus & Ellis Rep. N. S. 93; Blake v. The Midland Railway Company, 10 Eng. Law & Eq. Rep. 437; Linsley v. Bushnell, 15 Conn. Rep. 225; Segar v. The Town of Barkhamsted, 22 Conn. Rep. 290; Canning v. Williamstown, 1 Cush. 451; Lincoln v. Saratoga & Schenectady Railroad, 23 Wend. 425; Caldwell v. Murphy, 1 Duer 233; Perkins v. The Concord Railroad, 44 N. H.

Plaintiff will not be entitled to special damages on account of any particular calling or profession. The injury is personal to the man. The description in plaintiff’s writ, designating him as a timber-merchant, was merely descriptio personae, inserted there for identification and nothing more. We do not understand that plaintiff’s declaration in his writ contained any averment, under which he could claim damages in consequence of his trade ; or that the law would allow his damages to be enhanced on any such account. Such averment, if made, would simply be immaterial and of no advantage to- the plaintiff. Upon this part of the case we do not think the defendants have any grounds to complain of the ruling of the court. Ballou v. Farnum, 11 Allen 73.

We state the theory of the law on this subject; but in actual practice, juries, in making their estimate of a party’s loss of time, and sufferings, are apt to be much influenced by his rank in society, or relative merit's and position in life, and will be likely to inquire into the particular business or pursuit in which he may have been engaged when the injury was inflicted upon him.

Again plaintiff alleged negligence on the part of the defendants, in keeping their track in suitable repair and in the management of their train when the accident happened to him. One piece of evidence relied on to sustain this view was, that the train was running at an unusually rapid rate of speed, at or near midnight, around a sharp curve. *546Whether this rapidity of speed constituted negligence must depend in part on what kind of a train it was, or whether the car wheels and other furniture were in good repair or position, or battered or worn, or whether the track, over which they had been running, was rough or smooth. These are some of the proper elements to be weighed in determining the character of the accident. Previous hard usage of a track would be evidence tending to show present bad condition. If, contrary to the probable presumption, the car-wheels were not injured by the bad condition of the road, it was open to the plaintiff to have shown that fact to the satisfaction of the jury. The actual state, both of their track and wheels was much more within their knowledge than the plaintiff’s.

The probability that the defendants’ car-wheels were unfit when they were originally put On, or were rendered so by the roughness of the track, was enhanced by the fact that one set of wheels on the car, which run off, were either one and one-fourth or one and one-half inches too narrow a guage for the road-bed or track. It is manifest that such wheels were originally unfit to be used as they were, or would be more likely to be battered or injured by defective rails, than would wheels of a proper guage, and would be likely to be injured by running for many miles on such defective track.

It appears to us, that, upon principle, this evidence was legally competent for the jury to weigh. The only doubt is, whether it was not too remote; but, we think the decision of the. question of remoteness was within the discretion of the judge who tried the case, and we now think that discretion was properly exercised in this instance; and, therefore, the defendants’ exception to this evidence is overruled, and there must be

Judgment on the verdict.