Ricker v. Hall

Peaslee, J. The question of the existence of negligence is one of fact, and the correctness of a finding upon such a question will not be reviewed here, except so far as to determine whether there wras any evidence upon which a reasonable man might reach the conclusion arrived at. Hardy v. Railroad, 68 N. H. 523. The trier of facts having "found that the charge of negligence was not proved, the only question here is whether the evidence was so overwhelming that every reasonable man must have come to a different conclusion. The decisions in other jurisdictions, attempting to establish inflexible rules whereby it shall be settled that the existence of certain facts establishes a charge of negligence as a matter of law, are not entitled to the weight to which they would be if such views of the law prevailed in this state. The question of negligence, being here regarded as one of fact, is to be determined in the light of all the circumstances peculiar to the particular case. A certain fact, set in the midst of one kind of surroundings, may have a very different probative effect from what it would have with different surroundings. The claim made in this case is, that the fact that a person has at some time — no matter how remote — indulged in specula-',, tion to any extent, great or small,' is sufficient to make all who 1 subsequently employ him in a trust capacity, knowing of the speculation, liable for his defalcations in the employment. However great the care taken to supervise his conduct, and however many and convincing the surrounding circumstances tending to showr the reasonableness of the employment, they are all to be disregarded, because this branch of the law of negligence has been developed into a fixed formula. No such rule as this has been established in this state. Nor is the rule here stated .broader than it must be if the plaintiff’s claim is to be sustained. If remoteness of time may- be so great as to make the *596 question a debatable one, to be decided as a fact, the fourteen years that elapsed between- Abbot’s speculations and the time when it was discovered that he was an embezzler, and during which he apparently led a correct life, must be sufficient for that purpose. If the amount may be a' material fact to be considered, the evidence that Abbott’s known losses were only about $4,000 would seem to take this case out of the operation of the rule by which it is sought to make the question one of law. These facts, taken in connection with the others reported, show that the question involved was one to be determined at the trial term. Exception overruled. Wallace, J., did not sit: the others concurred.