91 A. 181 | N.H. | 1914
1. There was no error of law in the conclusion of the trial court that under the circumstances the declaration offered was so connected with the fact of injury as to be admissible. Dorr v. Railway,
"When a person receives a sudden injury, it is natural for him, if in the possession of his faculties, to state at once how it happened . . . . This view of the common experience of mankind shows that, if the declaration has that character, it possesses an important element of reliability and significance which is foreign to narrative remarks made so long after the event as to derive directly no probative force from it." Murray v. Railroad,
Whether the declarations offered are spontaneous, the result of the transaction, or are made after an opportunity for reflection — whether their weight as evidence is found in the circumstances under which they were made, or in the credibility of the declarant — are considerations which govern the admissibility of evidence of *301 this character. Murray v. Railroad, supra, and cases cited, p. 37; 3 Wig. Ev., ss. 1747, 1748. If, as the evidence tended to show, the declaration was made with the declarant's first consciousness after the accident, it could be found to result spontaneously from the injury and to be a part of what took place so far as the declarant was concerned, and not to have been the result of reflection and consideration by him. So made, the declaration was admissible.
Whether the declarant was or was not unconscious, as the evidence tended to prove, is a question of fact to be decided by the court in ruling upon the admissibility of the evidence. "When the determination of the competency of a proposed piece of evidence involves a preliminary decision of any questions of fact by the presiding judge, his decision on such matters of fact is final and not subject to exception." Hurlburt v. Bellows,
"Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court," Darting v. Westmoreland,
In the case Bundy v. Hyde, cited above, in which the definition of "discretion" was formulated, it was said: "It is quite proper at *302
any time, and certainly expedient, in a case of considerable doubt and difficulty, for the presiding justice to reserve the question of discretion for the revision of the whole court." Since that time very many cases have been decided in which it has been held that matters arising in the conduct of the trial term, in which the question is what ought to be done, what does justice require in the particular instance, are questions of fact determinable at the trial term, not open to exception. The cases are very numerous. See Jaques v. Chandler,
In many cases, in ruling that no question was presented by an exception to such findings, it has been remarked that no question of discretion had been reserved. These expressions tend to show an understanding that the finding of fact involved in determining motion for a new trial, limiting costs, permitting leading questions, excluding evidence for remoteness, and the like, might be reserved and transferred to the law court, but the jurisdiction does not appear to have been recently examined with particular reference to this class of questions. In Kent v. Hutchins,
In Metcalf v. Weed,
Either because of a change in the statute or in judicial interpretation, it is clear it was not understood in 1901 that the court at the law term had the jurisdiction to determine questions of fact, which was exercised in Paul v. Reed, supra. It is to be remembered that prior to 1901 the individual judges who held the trial terms sat together as the law court. While trial terms might generally be held by a single justice (P. S., c. 207, s. 1), there was no limitation to that number. In capital cases two were required (P. S., c. 254, s. 2), while in cases of great importance more, or all of the court, sat together as trial judges. Attorney-General v. Taggart, a case in which all the judges sat, reported
Although in 1870, in Bundy v. Hyde, the court recognized the propriety of the reservation of questions of discretion in difficult cases, in 1877, immediately after the reorganization of the court in 1876, it was said in Fuller v. Bailey,
The distinction between law and fact in the decisions of the court was not so clearly observed in the early judicial history of the state, when all the questions of law and fact were blended together upon the docket and heard by the same judges. Glover v. Baker,
2. The deceased was employed to carry boiler flues from piles upon the west side of a track in the railroad yard, across the track to a shop on the east side. He went to work at seven in the morning and about twenty minutes later was injured by a derrick car backed down the track, which struck him just as he stepped upon the track to carry a flue across. A witness who observed him at work being asked "Did you notice whether he paid any attention to the tracks?" answered "I noticed that before he picked up a flue he looked up the track," whereupon the defendants excepted. The inquiry was competent and the answer responsive. The question called for a part of the history of the transaction leading up to the accident and tended to throw light on the question whether the deceased was acting without any regard to the dangers of his work-place.
Whether the answer tended to prove that just before he started on the fatal trip across the track he looked up, and whether, if he did, such act was evidence of care, are questions not raised by the *305 general exception to the answer. No rule of law limits the evidence of the morning's events to the fraction of a minute while Powell was walking from the flue pile to the track upon his last trip. So much of what took place as the presiding judge found not too remote to aid the jury was competent.
3. The defendants' motions for a nonsuit and a verdict are based upon the claim that Powell's fault was part of the cause of his injury.
It is conceded that under the recent decision in Boody v. Company, ante, 208, the deceased's employment at the time of the injury was one of those described in section 1, chapter 163, Laws 1911. The defendants as employers not having accepted the provisions of the act as provided in section 3, the rule of liability in this case is prescribed by section 2, which provides: "The workman shall not be held to have assumed the risk of any injury due to any cause specified in this section; but there shall be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed." By these provisions the defence of assumption of risk is wholly destroyed, and the plaintiff is relieved of the burden of proving the deceased's freedom from fault as a cause of the injury. If the case discloses no evidence upon the question, or the evidence is evenly balanced, the plaintiff may recover. It is only when the evidence balances in the defendant's favor that the defence of the contributory negligence of the injured employee may prevail. As the jury is the only tribunal authorized to weigh evidence, to determine upon which side the preponderance lies, the cases would seem to be few in which the judgment of that tribunal must not be invoked. If the plaintiff's evidence does not conclusively show the injured party's want of care, and evidence on that issue is presented by the defendant, it would ordinarily be for the jury to believe or disbelieve the defendant's witnesses. Lally v. Insurance Co.,
This was his first employment; the accident occurred within twenty minutes after he went to work. If he had looked to the north immediately before he stepped upon the track, he probably *306 would have escaped injury. Was his failure to look both ways at the moment of his entry upon the track so plainly careless, in view of his knowledge of the situation, that he must be held in fault? That he looked to the north before picking up a flue is evidence of his understanding of the extent of the danger from that direction. Whether the profane warning the defendants' witness testified was given him to be careful of that switcher, "it is running back and forth all the time," was in fact given, was for the jury to say. They might not believe such a witness; or if they did, they might think from the way Powell was doing his work that he did not understand the switcher would be run at such a speed over his work-place that looking in that direction before he picked up a flue was not sufficient precaution. There was conflict as to the speed at which the derrick car train was run. On one view of the evidence, it may not have been in sight when Powell started to take up the flue. That running a train in such a way over a track where other employees were set at work is evidence of negligence is not contested. Reasonable men might conclude that with Powell's inexperience in railroad work he was not careless because he failed to anticipate and guard himself against such recklessness in operation.
As it might be found the train was not in sight just before Powell took up the flue for his last trip, the fact that he was struck does not conclusively prove that he did not then look. If, as the defendants contend, the evidence that he looked on two or three previous trips before picking up a flue is not legally competent to prove that he did look on the last trip, its incompetency might leave the case without evidence on the point, but would not establish "a preponderance of evidence" that he did not look.
Exceptions overruled.
PLUMMER, J., was absent: the others concurred. *307