Burnham v. Concord Railroad

Parsons, J. Where, after a motion for a nonsuit is erroneously denied, the defendant, instead of risking his case upon the exception, goes on with the trial and introduces evidence, the exception is waived if the deficiency in evidence is supplied by one side or the other before the case goes to the jury. Gagnon v. Dana, ante, p. 264; Fletcher v. Thompson, 55 N. H. 308; Prescott v. Hayes, 43 N. H. 593, 598; Oakes v. Thornton, 28 N. H. 44; Bowman v. Sanborn, 25 N. H. 87, 108; Clough v. Bowman, 15 N. H. 504, 515. Under such circumstances, therefore, an exception to the denial of a motion for a nonsuit made when the plaintiff rested, and an exception to a refusal to direct a verdict for the defendant at the close of all the evidence present the same question : whether upon the whole case there is any substantial evidence tending to prove the affirmative of the issue. The issue in this case was Clifford’s knowledge. The legal effect of knowledge by Clifford of the risk by which he was injured is not questioned. It is conceded that, if he knew the situation, he was of sufficient intelligence and experience to understand and comprehend the danger. The question submitted to the jury was whether Clifford knew or ought to have known the situation of the arch. In other words, did he know or ought he to have known, not only that there was an overhead obstruction at the entrance to the freight house, but that it was at such height above the track ás to present the danger by which he was injured if he put himself into the position he did at that particular place? The plaintiff presented no direct evidence upon the question of Clifford’s knowledge. In the ab *283 sence of direct evidence the question is, what inferences of fact should be drawn from the facts proved ? If different inferences can or may reasonably be drawn under all the circumstances in evidence, the jury is the only tribunal authorized to determine which is the correct inference. While if reasonable men cannot differ as to the inference of fact established by the facts proved, or, stating'the proposition in another form, if only one inference can reasonably be drawn from the proved or admitted facts, there is no question for the jury. Hardy v. Railroad, 68 N. H. 523. From the facts proved by the plaintiff',— Clifford’s experience as a railroad man, his employment as one of the crew engaged in shifting cars in and out of the freight house where they were unloaded, the shifting crew being inside the freight house ten to twenty times each night of the thirteen he worked,— it is manifest that the existence of an overhead obstruction at the south entrance of the freight house could not have escaped his attention. No other conclusion can reasonably be drawn from the facts. Whether, considering the fact that his work was in the night-time, the insufficiency of light in the freight house, and the possibility of error in the estimation of the height of the different portions of the arch, it should on these facts be conclusively presumed that he knew on what cars he could safely pass and upon what he could not, would be perhaps doubtful. But as the case was left by the plaintiff’, this question is immaterial. For if he knew, as upon the evidence it must be presumed he did know, that there was an unguarded obstruction, as was said in Hardy v. Railroad, supra, 536, the whole burden of his safety rested with him. lie was bound to protect himself on low as well as on high cars. Until by some means sufficient to constitute due care he had ascertained that on some cars lie could pass safely without special precaution, due care would require him to be on the outlook on every occasion. Nor is the situation altered by the fact that he was injured at the north archway instead of at the south, even if it might be found that he had never been under the north arch upon a car before his injury. Because, knowing the obstruction and danger at one entrance to the building, due care would not permit him to assume without observation that the opposite entrance, with the same apparent construction, did not present any danger. In Burnham v. Railroad, 68 N. H. 567, one who worked in a railroad yard in which, wherever he had been, all the guardrails, switches, and frogs were unblocked, could not, in the exercise of due care, assume that they were guarded by blocking in a part of the yard with which he had no acquaintance. As the evidence stood when the motion for nonsuit was made, the case did not differ in principle from Burnham v. Railroad, supra. *284 But before the evidence was closed, one Coty, an employee of the defendants in charge of the crew in which Clifford worked, testified that when Clifford first came into the yard he told him to look out for himself in going through the arch on big, high cars,— that on common cars he would be all right. Clifford, whether he learned of the overhead obstruction from Coty or from its situation in plain sight, was bound to exercise due care to inform himself of the nature and extent of the danger. Whether the obligation to inform himself might be satisfied by inquiry of and information from an intelligent person with the means of knowledge, and in charge of the work Clifford was about to undertake, would depend upon all the circumstances affecting the situation. One circumstance materially affecting the question whether, in the exercise of due care, Clifford could or ought to have relied upon what was told him, is the apparent ability, experience, and intelligence of his informant. Whether Coty appeared to be a person upon whom “ an experienced railroad man ” would or could, in the exercise of due care, properly rely in such a matter, is a question of fact upon which his appearance upon the witness stand may have had great weight. Whether under all the circumstances Clifford relied upon what Coty said and, therefore, as he was on a car of average height, supposed he was incurring no danger, is a question about which it cannot be said on the evidence that the only inference that can reasonably be drawn is fatal to the plaintiff's case. It is as if Duquette, knowing generally the rails in the yard were unblocked, had been instructed by his immediate employer that all the rails north of the bridge (the place of his injury) were blocked. Burnham v. Railroad, supra. It could not have been held that Duquette assumed a risk of which he did not know, and which he had been told did not exist. Clifford did not assume the risk unless he knew or ought to have known the danger. Coty’s statement of what he told Clifford is substantial evidence tending to prove that Clifford might not have known “the situation of the arch,”—that is, that it was so situated as to expose him to danger on a car of average height. It tends to establish in him a belief to the contrary. There is no direct evidence in opposition. If there were, it would have been for the jury to detei’mine the conflict. If there may be cases where the sole inference from the facts established is so conclusive that the contrary testimony of a witness would be ezititled to no weight in the minds of reasonable men, the present case is not one of them. The objection that the action was not seasonably brought was properly ovezuniled. French v. Mascoma Co., 66 N. H. 90. Exceptions overruled. Clark, Chase, and Wallace, JJ., did not sit: the others concurred.