58 A.2d 745 | N.H. | 1948
Although there must be a new trial for reasons hereinafter stated, the Court correctly denied the defendant's motions for a nonsuit, a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. The gist of the defendant's argument in support of his motions is that there is no evidence of causal negligence on the part of the defendant, and further that the plaintiff's testimony is incredible as a matter of law. Turning to the first of these two contentions we find that on the evidence most favorable to the plaintiff it might be found there was a "bulge" or rise in the center of the platform three-fourths of an inch high, and that this was responsible for the plaintiff's losing her balance when the doorknob suddenly came off as she turned it. True, there was conflicting evidence upon this, but the pictures of the platform introduced as exhibits show an appreciable rise and consequent depression, and there is testimony that this was greater at the time of the accident than when the pictures were taken. There was also evidence that such a variation not only would have a tendency to cause the plaintiff to turn her ankle but that it actually did so, with the result that she lost her balance and fell. The case is thus distinguishable upon the facts from Medbury v. Garage,
Since no issue is raised as to the plaintiff's care it follows that she was entitled to submit to the jury the question of the defendant's causal negligence unless no reasonable person could believe her testimony. Hebert v. Railroad,
We come now to the defendant's exception to the Court's ruling with reference to the letter, in the handwriting of the plaintiff and signed by her, to the treasurer of the defendant bank, the material portions of which read as follows: —
"On Tuesday, February 8, 1944, about 11:00 A.M. I was injured on property owned by the Manchester Savings Bank at 361 Massabesic Street, this city, where I have been working. While about to unlock front door, at above address the doorknob came off, throwing me backwards from the platform down the steps and onto the sidewalk, resulting in painful back injuries which is still confining me to my home at 250 Massabesic Street where I was brought in a car and carried into the house. . . .
"As I must have X-ray treatment at the hospital, will you kindly let me know about the bank's liability insurance on their property which includes 361 Massabesic Street."
This letter, while going into a little more detail concerning the accident than her statement to the librarian at the hospital where she went on May 31, corroborates the story she told then and also the statement she gave to a representative of the defendant on March 29. In none of these statements was there reference to any defect in the platform. The defendant bases its defense on the proposition that the loose doorknob was the sole cause of her fall, and that she brought in the claim of a defective platform only after she was informed of the fact that she had no case against the bank unless she could prove the platform as well as the doorknob contributed to her accident. Obviously by far the most persuasive of these three items bearing on this issue was the letter written and signed by the plaintiff herself. The remaining statements were written by someone other than the plaintiff and hence much more susceptible to error, a fact which her counsel was careful to impress on the jury. The Court ruled upon the plaintiff's insistence that if the defendant introduced any part of it the *117
entire letter must go in. The plaintiff now claims this ruling should be sustained on the grounds that it was discretionary with the Trial Justice whether greater prejudice would accrue to the plaintiff by the exclusion of a portion of the letter than to the defendant by requiring the use of all of it. He argues that this ruling presents no question of law for this court. This is error. In Menard v. Cashman,
Nor does the doctrine of completeness, that the whole of an utterance must be taken together, aid the plaintiff. That theory rests entirely on "conceptions of substantial justice and fairness" to both parties and upon the idea that "`fairness may mean completeness.'" See Clapp v. McCleary,
It is small wonder that confronted with myriad questions of both fact and law and under pressure to move with dispatch the significance of certain matters is not always as clear to the trial court as to an appellate tribunal which has ample time to study the record. However, it appears that since the reference to insurance was prejudicial to the defendant, and served no legitimate purpose of the plaintiff, there was no basis in law for the Court's ruling and it must be reversed. Menard v. Cashman, supra, and cases cited; Thistle v. Halstead, ante, 87.
This appears to dispose of all exceptions which are likely to arise at another trial, and the order is,
New trial.
All concurred.