Pitman v. Merriman

The intestate was a trespasser or at least a mere licensee, so long as he was on the load of wood, but it does not necessarily follow from the fact the accident would not have happened but for his wrongful presence on the load of wood, that the plaintiff cannot maintain this action, for Gillis was using the defendant's team in the way he was employed to use it at the time the accident happened. That is, he was using it to haul wood to the railroad. His acts, therefore, in the management of the team were her acts; consequently the plaintiff can recover from the defendant if ordinary care on Gillis' part in the management of the team, after he knew of the boy's danger, would have prevented the accident; for in this case the intestate's misconduct in riding with Gillis was the *Page 493 occasion, and Gillis' misconduct in failing to stop the team in time to prevent the accident, the cause of the intestate's death. Cavanaugh v. Railroad, 76 N.H. 68. In other words, this case cannot be distinguished on principle from those in which a person who was riding on Sunday has been permitted to recover for the loss he sustained by reason of a defect in the highway. Corey v. Bath, 35 N.H. 530, 541. Sewell v. Webster, 59 N.H. 586. Wentworth v. Jefferson, 60 N.H. 158. The test, therefore, to determine whether the defendant is chargeable with the intestate's death is to inquire whether the accident would have happened if Gillis had exercised ordinary care to prevent it after he knew of the boy's danger. The issue raised by this inquiry is one of fact, and the evidence relevant thereto is that the team moved forward from eleven to twelve feet after the boy struck the ground, before he was killed, and that it might have been stopped within three or four feet. It cannot be said, therefore, all fair-minded men must agree that ordinary care on Gillis' part, after he knew of the boy's danger, would not have prevented the accident. Exception sustained. PEASLEE, J., was absent: WALKER, J., dissented: the others concurred. After the foregoing opinion was filed, the defendant moved for a rehearing. Upon this motion argument was invited upon the question of the sufficiency of the evidence of Gillis' fault.