117 A. 16 | N.H. | 1922
The plaintiff seeks damages because he says, as he stood upon the step of a locomotive proceeding slowly through the Nashua yard, in the act of alighting therefrom in the course of his employment, his heel struck a projecting ridge of ice or frozen snow knocking him from the step with resultant injuries. He charges negligence in permitting the existence of such an accumulation of snow or ice so near the track. The defendant answers that, considering the character of the season, the numerous snowfalls shortly preceding the accident, negligence cannot be found merely from the existence of the situation which the plaintiff contended caused the accident, and second that the accumulation of ice and snow, of which the plaintiff complained, did not exist.
Upon the first proposition there was a large amount of evidence as to the amount of snowfall immediately preceding the accident and of the difficulty experienced by the defendant in maintaining transportation in the face of climatic conditions as they existed that winter. *333 Whether the jury without other evidence could be permitted to find the defendant guilty of negligence because of failure to remove the natural accumulation of snow at a particular spot may be a doubtful question but the case does not stand upon such a proposition. There was evidence that the pile of snow complained of was made by shovelers clearing adjoining tracks. The defendant's track supervisor testified that if there had been at the place of accident such an accumulation of snow as the plaintiff claimed, it would have been removed. The foreman of the yard who was in attendance at the trial was not called as a witness. These facts constitute evidence tending to establish the plaintiff's claim that the existence of such an obstruction as he claimed did exist so near the track in the yard was due to carelessness either in piling the snow at that place or in failing to remove it.
The evidence tending to establish the existence of the pile of snow or ice so near the track as to produce the accident, is the plaintiff's testimony that his heel was struck as he stood on the locomotive step and his account of his observation after he was knocked from the step before he rolled under the wheels of the tender and of the testimony of a witness who saw the place a few hours afterward, who made no measurements but estimated the height of the ice and its proximity to the track as such as would have rendered possible the happening of the accident as the plaintiff claimed. On the other hand, the defendant called a witness, who almost immediately after the accident carefully measured the ice pile and made a plan of the cross-section of the ice and track. If this witness was accurate and truthful, the accident could not have happened as the plaintiff claimed. Other witnesses called by the defendant tended to establish this contention. The question is as to the weight of the evidence. Whether the verdict is against the weight of the evidence is a question for the trial court, which cannot be determined here unless it is clear. that on the evidence only one conclusion is reasonable. Ingerson v. Railway,
Under the federal statutes, assumption of risk is a defence, as to which the burden of proof rests with the defendant. Crugley v. Railway,
Under the federal statute (U.S. Stat. 1908, c. 149, s. 3), contributory negligence is not a defence but goes in reduction of damages. In the absence of exception, it must be presumed this question was properly submitted to the jury.
The defendant excepts to a remark by plaintiff's counsel in opening, and to certain statements in the argument, none of which are of such character as to render the trial unfair as matter of law. If the plaintiff's lack of education was due to his parents' lack of financial resource rather than to the plaintiff's natural stupidity or indolence, the fact was competent as tending to show the kind of man the plaintiff was, a question material on the issue as to damages. Whether the plaintiff could earn a living in a clerical capacity or only by active employment such as he had been engaged in, was also competent on the same question. Whether these or other questions were presented in argument so as to excite prejudice and render the trial unfair was, at least in the first instance, for the trial court, and in the absence of objection, ruling and exception, are not properly cognizable here. Tuttle v. Dodge, ante, 304.
Exceptions overruled.
SNOW, J., did not sit: the others concurred. *335