Felch v. Concord Railroad

The motions (1) for a nonsuit and (2) to set aside the verdict rest on the same ground, and were properly denied. It was unnecessary for the plaintiff to prove that Willis was rightfully on the defendants' track, or, if he was wrongfully there, that the defendants wantonly or wilfully ran upon and injured him. Upon the question whether the plaintiff or the defendants were entitled to a verdict, the first four special findings of the jury were immaterial. Evidence tending to prove that the defendants wantonly or wilfully drove their engine upon Willis was irrelevant, except perhaps on the question of damages (Fay v. Parker, 53 N.H. 342, Bixby v. Dunlap, 56 N.H. 466): they were equally liable whether they negligently or wilfully caused the injury. Evidence tending to show that Willis was rightfully, or wrongfully, on the track was competent for the jury to consider in determining the measure of care which the defendants were bound to exercise. Greater watchfulness might reasonably be required against expected than unexpected danger. But the unexpected presence of Willis on the track through his own or his father's negligence, or as a wilful trespasser, would not relieve the defendants from their obligation to exercise ordinary care, or excuse them for doing him an injury which by ordinary care they could avoid. Assuming that Willis was competent to act as a person of average prudence would, the questions for the jury were, — (1) Could the defendants by ordinary care have prevented the accident? If they could not, they were without fault and not liable. If they were in fault, (2) Could Willis, notwithstanding their negligence, have escaped injury by the exercise of like care? If he could not, the verdict would be for the plaintiff, and if he could, for the defendants. Nashua Iron and Steel Co. v. Railroad,62 N.H. 159. If it was conceded that Willis was incapable of exercising care, the first named question was the only one. Bisaillon v. Blood,64 N.H. 565. His capacity, if in dispute, was a question for the jury. In the absence of exceptions to the instructions under which the jury returned a general verdict for the plaintiff, it is presumed that the case was properly submitted to them, and there must be Judgment on the verdict. ALLEN, J., did not sit: the others concurred. *Page 321 The defendants conceded the correctness of the foregoing opinion as the case then stood, but moved for a rehearing, and in support of the motion procured amendments to the case as follows: 1. The defendants claimed at the trial, as a general ground for their motion for a nonsuit, that there was no evidence to show that they were not in the exercise of due and ordinary care at the time and place of the accident, and that there was no evidence to warrant the jury in finding a verdict for the plaintiff; also, that there was no evidence to show that the decedent was in the exercise of due care, or upon which the jury could legally find a verdict for the plaintiff. These grounds for a nonsuit, among others stated in the case, were urged by the defendants' counsel; and they did not understand that these, or any legitimate grounds in support of their motion, were waived by a statement of other special grounds only as made in the case. The trial proceeded on the ground that the deceased was sui juris, excepting that on the question of his reasonable care the jury were instructed to take into account his age, intelligence, and experience, and the fact that he went where he did by the plaintiff's direction. 2. Among other things, the court instructed the jury that to entitle the plaintiff to recover he must show by a balance of evidence that the decedent, Willis Felch, was rightfully on the track of the railroad at the place of the injury at the time of the accident, and was injured by negligence or want of reasonable care on the part of the defendants; or, if not rightfully at the place of the injury on the railroad track, he must show that he was wantonly or recklessly run upon and injured. If the decedent was rightfully there, and the defendants inflicted the injury through want of ordinary care, that is, through negligence, and there was no want of reasonable care on the part of the plaintiff or of the decedent, which proximately contributed to the injury, the plaintiff can recover. If the decedent was not rightfully there, and the defendants' agents saw him, or under the circumstances ought to have seen him, and by the use of such means as were in their power might have avoided the injury and did not, the plaintiff can recover. That is, although the plaintiff may have been wrongfully there still, if the defendants' agents knew it, or in the ordinary course of the performance of their duties ought to have known it, and might have avoided the injury and did not, that is, wilfully, wantonly, or recklessly committed the injury, the defendants are liable. But if the decedent was wrongfully there, and the defendants' agents did not wantonly or recklessly injure him, that is, did not know seasonably that he was there so as to have avoided inflicting the injury, and after they did know it, or under the circumstances ought to have known it, used all the means in their power to avoid *Page 322 the injury, the plaintiff is not entitled to recover. If the decedent was rightfully there and the defendants performed their duties under the circumstances, if they did not run their train negligently, if there was no want of ordinary and reasonable care under the circumstances, then the plaintiff cannot recover, for he brings his action against the defendants for an injury caused by their negligence. If the decedent was rightfully there, but want of ordinary care on his part, either in being there or in what he did, proximately contributed to the injury, the plaintiff cannot recover. Early in the trial, on inquiry made by counsel on both sides, the court indicated the principles on which the trial should proceed, as substantially covered by the above instructions, and the trial proceeded substantially on the ground indicated. The testimony at the trial was taken verbatim, and made a part of the case transferred. The evidence essential to the decision is stated in the opinion.