The demurrer to the plea which sets up the contract between the defendant and the American Express Company and that between the company and the plaintiff as a bar to the plaintiff's right of action was properly sustained. The contracts differ in no essential respect from those considered in Baker v. Railroad, 74 N.H. 100.
There was abundant evidence that the release was obtained by
fraud. It appeared from the testimony of witnesses and from the plaintiff's signature upon the release, that he was not in a normal condition at the time it was executed. He was not then able to read and did not know that the paper was a release, or that it in any way concerned the defendant. He was not informed as to its contents, and supposed it was merely a voucher for his month's pay, which was the sum received. There was also evidence that before he was sent for to go to the Express Company's office, he had been told by the party who obtained the release that his pay would be allowed to him while he was incapacitated. He had no idea that he was dealing with an agent of the defendant.
It further appeared that the agent subsequently attempted to conceal the nature of the transaction from the plaintiff's wife and assured her that the paper had no reference to the defendant. The exception to the admission of this evidence on this issue must be overruled. The defendant claims the benefit of the acts of the person obtaining the release, and is therefore chargeable with all his acts which are parts of that transaction. Rolfe v. Railroad, 69 N.H. 476, 477, and cases cited.
It is urged in support of the motion to direct a verdict, that the evidence brings the case within the class of which Gahagan v. Railroad,70 N.H. 441, is a type, rather than that of which Minot v. Railroad,73 N.H. 317, — 74 N.H. 230, is typical. That there was evidence of the defendant's fault is not open to question. It ran a shifting engine over the tracks through the passenger train-shed in Concord in an unusual way, at a high rate of speed, and without warning. The real issue is upon the care of the plaintiff.
There was evidence which would have warranted the jury in finding the state of facts related below. The plaintiff, in the course of his employment as a servant of the Express Company, went across the tracks in the station to a car standing on the track next east of the train-shed. As he went he saw the shifter standing among the switches below the train-shed and about 1,000 feet from him. It had been the custom, as he had observed it in seven years' experience, for the shifter to wait there until train No. 5 came in from Boston. Until that time it had no business in the train-shed. He had reason to think that no train or engine would pass over the tracks for more than ten minutes. Acting upon this belief, he recrossed the track without taking further precautions, and was struck by the shifter.
The defendant concedes that such facts would bring the case within the principles laid down in Minot v. Railroad, supra; but it insists that the plaintiff should have known the shifter might come up the track before train No. 5 came in. There are two
tracks outside the shed, used for shifting purposes. If both of these are blocked, an engine cannot pass from south to north except through the train-shed. On the morning of the accident these outside tracks were blocked by cars which were to be shifted onto sidings at the northwesterly corner of the train-sheds, to make up the Hillsborough and Claremont trains. If the road engines came out from the roundhouse south of the station and went to the yard north of the station in good season, they shifted their trains onto their respective sidings. If they were late out, the shifter placed the trains. The road engines were not out this morning. From these facts it is argued that the only way for the shifter to get to the head end of these trains was through the train-shed, and that the plaintiff knew or ought to have known this fact and have been on the lookout. There are several answers to this proposition. It does not conclusively appear that the plaintiff knew the outside tracks were both blocked. It does not appear that he knew the road engines were not out; and it was only in that event that there would be any call for the shifter to go north. Lastly, there was nothing to prevent the shifter from pushing one of the trains up into the north yard and then proceeding in the usual way. The considerations here urged are merely evidentiary facts, tending to prove the defendant's contentions. They do not conclude the matter, nor authorize the withdrawal from the jury of the question whether these pieces of evidence or those leading to the opposite conclusion were of the greater weight. The motion to direct a verdict was properly denied.
Various exceptions to evidence are urged. On cross-examination, in response to the inquiry "How far is it from the place where you left the Hillsborough car to the place on the White Mountain track where you were hit?" the plaintiff testified "I don't know; they dragged me 117 feet." The defendant excepted to this, to expert testimony based upon it, and to the argument of counsel that it was probable that when the plaintiff returned to work some two months after the accident he would "go down and see how far they dragged him." The evidence was properly admitted. Glauber Mfg. Co. v. Voter, 70 N.H. 332, 333, and cases cited. The argument stated no fact not in evidence, but properly urged upon the jury's attention an established opportunity to obtain the knowledge testified to.
The plaintiff's testimony, that he did not understand that the agent of the Express Company from whom he received the $65 represented the defendant, was admissible upon the issue of fraud in obtaining the release.
The plaintiff's mental condition when he gave his deposition
would be a fact to consider in determining the weight to be given to the answers he made. There was no error in allowing his wife to testify on that topic. While demeanor evidence is usually supplied by the actual observation of the witness by the jury, yet when, as here, his appearance of nervousness and confusion, as the examination went on, could not be observed by them, it was properly put in evidence by the testimony of those who did observe it. 2 Wig. Ev., s. 946. If he had testified on the stand and had manifestly become so wearied by the strain of the examination that his answers, which had theretofore been clear and responsive, became incoherent or confused, it would have been proper for the jury to consider this fact in determining the weight to attach to the later responses.
The evidence that it would be safer to run the shifter over the outside tracks than over those in the train-shed is excepted to upon the ground that it tended to prove negligence in a matter not involved in this suit. One issue in this case was whether it was negligent to run a shifter over the track in the train-shed. Evidence that there was another and safer way to do the business would plainly have a tendency to prove that it was negligent to adopt the more dangerous method.
The testimony of Dr. Richardson as to traumatic injuries causing multiple sclerosis was properly admitted. He said: "I hope it is understood that this is not of my own experience, it is statistics which have been published. Statistics give as high as twenty per cent of cases.
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The demurrer to the plea which sets up the contract between the defendant and the American Express Company and that between the company and the plaintiff as a bar to the plaintiff's right of action was properly sustained. The contracts differ in no essential respect from those considered in Baker v. Railroad, 74 N.H. 100.
There was abundant evidence that the release was obtained by
fraud. It appeared from the testimony of witnesses and from the plaintiff's signature upon the release, that he was not in a normal condition at the time it was executed. He was not then able to read and did not know that the paper was a release, or that it in any way concerned the defendant. He was not informed as to its contents, and supposed it was merely a voucher for his month's pay, which was the sum received. There was also evidence that before he was sent for to go to the Express Company's office, he had been told by the party who obtained the release that his pay would be allowed to him while he was incapacitated. He had no idea that he was dealing with an agent of the defendant.
It further appeared that the agent subsequently attempted to conceal the nature of the transaction from the plaintiff's wife and assured her that the paper had no reference to the defendant. The exception to the admission of this evidence on this issue must be overruled. The defendant claims the benefit of the acts of the person obtaining the release, and is therefore chargeable with all his acts which are parts of that transaction. Rolfe v. Railroad, 69 N.H. 476, 477, and cases cited.
It is urged in support of the motion to direct a verdict, that the evidence brings the case within the class of which Gahagan v. Railroad,70 N.H. 441, is a type, rather than that of which Minot v. Railroad,73 N.H. 317, — 74 N.H. 230, is typical. That there was evidence of the defendant's fault is not open to question. It ran a shifting engine over the tracks through the passenger train-shed in Concord in an unusual way, at a high rate of speed, and without warning. The real issue is upon the care of the plaintiff.
There was evidence which would have warranted the jury in finding the state of facts related below. The plaintiff, in the course of his employment as a servant of the Express Company, went across the tracks in the station to a car standing on the track next east of the train-shed. As he went he saw the shifter standing among the switches below the train-shed and about 1,000 feet from him. It had been the custom, as he had observed it in seven years' experience, for the shifter to wait there until train No. 5 came in from Boston. Until that time it had no business in the train-shed. He had reason to think that no train or engine would pass over the tracks for more than ten minutes. Acting upon this belief, he recrossed the track without taking further precautions, and was struck by the shifter.
The defendant concedes that such facts would bring the case within the principles laid down in Minot v. Railroad, supra; but it insists that the plaintiff should have known the shifter might come up the track before train No. 5 came in. There are two
tracks outside the shed, used for shifting purposes. If both of these are blocked, an engine cannot pass from south to north except through the train-shed. On the morning of the accident these outside tracks were blocked by cars which were to be shifted onto sidings at the northwesterly corner of the train-sheds, to make up the Hillsborough and Claremont trains. If the road engines came out from the roundhouse south of the station and went to the yard north of the station in good season, they shifted their trains onto their respective sidings. If they were late out, the shifter placed the trains. The road engines were not out this morning. From these facts it is argued that the only way for the shifter to get to the head end of these trains was through the train-shed, and that the plaintiff knew or ought to have known this fact and have been on the lookout. There are several answers to this proposition. It does not conclusively appear that the plaintiff knew the outside tracks were both blocked. It does not appear that he knew the road engines were not out; and it was only in that event that there would be any call for the shifter to go north. Lastly, there was nothing to prevent the shifter from pushing one of the trains up into the north yard and then proceeding in the usual way. The considerations here urged are merely evidentiary facts, tending to prove the defendant's contentions. They do not conclude the matter, nor authorize the withdrawal from the jury of the question whether these pieces of evidence or those leading to the opposite conclusion were of the greater weight. The motion to direct a verdict was properly denied.
Various exceptions to evidence are urged. On cross-examination, in response to the inquiry "How far is it from the place where you left the Hillsborough car to the place on the White Mountain track where you were hit?" the plaintiff testified "I don't know; they dragged me 117 feet." The defendant excepted to this, to expert testimony based upon it, and to the argument of counsel that it was probable that when the plaintiff returned to work some two months after the accident he would "go down and see how far they dragged him." The evidence was properly admitted. Glauber Mfg. Co. v. Voter, 70 N.H. 332, 333, and cases cited. The argument stated no fact not in evidence, but properly urged upon the jury's attention an established opportunity to obtain the knowledge testified to.
The plaintiff's testimony, that he did not understand that the agent of the Express Company from whom he received the $65 represented the defendant, was admissible upon the issue of fraud in obtaining the release.
The plaintiff's mental condition when he gave his deposition
would be a fact to consider in determining the weight to be given to the answers he made. There was no error in allowing his wife to testify on that topic. While demeanor evidence is usually supplied by the actual observation of the witness by the jury, yet when, as here, his appearance of nervousness and confusion, as the examination went on, could not be observed by them, it was properly put in evidence by the testimony of those who did observe it. 2 Wig. Ev., s. 946. If he had testified on the stand and had manifestly become so wearied by the strain of the examination that his answers, which had theretofore been clear and responsive, became incoherent or confused, it would have been proper for the jury to consider this fact in determining the weight to attach to the later responses.
The evidence that it would be safer to run the shifter over the outside tracks than over those in the train-shed is excepted to upon the ground that it tended to prove negligence in a matter not involved in this suit. One issue in this case was whether it was negligent to run a shifter over the track in the train-shed. Evidence that there was another and safer way to do the business would plainly have a tendency to prove that it was negligent to adopt the more dangerous method.
The testimony of Dr. Richardson as to traumatic injuries causing multiple sclerosis was properly admitted. He said: "I hope it is understood that this is not of my own experience, it is statistics which have been published. Statistics give as high as twenty per cent of cases. The most reliable statistics now known are those of the Vanderbilt clinic in New York, which give ten per cent of all cases received there as being of traumatic origin."
"The limit of safety in this direction is reached, it would seem, when we admit, as the practice in this state is, the opinions of medical men, for instance, with regard to a disease which in actual practice they may not have treated, but concerning which the science and skill of long experience in the affinities and analogies of the subject have prepared them to speak with confidence, from a knowledge of the rules and laws governing the special subject of inquiry." Dole v. Johnson, 50 N.H. 452, 456. The jury are to be given the expert opinion of the witness, founded upon the authorities. See State v. Wood, 53 N.H. 484; Ordway v. Haynes, 50 N.H. 159. This is the substance of what was done in the present instance. The witness could not truthfully state a fixed percentage. The best that could fairly be done was to give the reasonable limitations, and this the witness undertook to do. In its last analysis, the testimony rested upon his judgment to give it value. It was, in effect, his opinion that probably about ten per cent of the cases of multiple sclerosis were caused by violence,
although statistics which he was bound to give some credence to fixed the percentage higher.
The mortality tables were competent evidence of the plaintiff's expectation of life. 3 Wig. Ev. s. 1698, and cases cited.
The exceptions to the closing argument of the plaintiff's counsel to the jury must be overruled[.] It has not been pointed out wherein there was any attempt to state any fact which was not in evidence, nor that the court confirmed any erroneous view of the law. Story v. Railroad, 70 N.H. 364,376. "In no case has verdict been set aside when the remarks of counsel were founded on evidence which related to a material issue, no matter what the form of the statement, how forcibly it was put, or how much it tended to prejudice the jury in favor of his client." Ib. 387.
The exceptions to the instructions given and refused remain to be considered. At one place in the charge the court said: "The defendants further claim that even if the plaintiff originally had cause of action against them for the injuries complained of, he has released it." The defendant excepted upon the ground that "tends to give the jury the impression that taking the release was an admission of liability." It now urges this exception. It appears from the record that just before the jury retired the court gave them this instruction: "If you find that the release was invalid, you will not consider it upon the plaintiff's or defendant's negligence. It has no bearing whatever, is an independent matter; and having passed upon whether it is a proper release or not, you will not consider it any further in the case; that is, it has no bearing whatever upon the plaintiff's negligence, or defendant's negligence." Comment seems unnecessary. The exception is overruled.
Exceptions to various instructions, upon the ground that there is no evidence to which they can apply, are disposed of by what has been said upon the motion to direct a verdict.
The sixth exception is to putting the question of the defendant's negligence before the plaintiff's care in giving the instructions. That this is the usual way of stating the case, no one familiar with jury trials since negligence suits have become numerous will deny. In any event the objection states no question of law. Elwell v. Roper, 72 N.H. 585; Walker v. Railroad, 71 N.H. 271; Rublee v. Belmont, 62 N.H. 365. And beyond all this, when the court took up the subjects in detail, the plaintiff's care was considered first.
The jury were instructed that negligence on the part of the defendant might be found from the failure to give warning, the failure to keep or provide a proper lookout, or from the excessive speed. The defendant excepted upon the ground that these omissions
would not have been negligence toward the plaintiff unless he reasonably believed he had a clear track, and the engineer knew or ought to have known he was acting on such belief. This instruction was given, in substance. The jury were told that there was no duty to keep a lookout, etc., except so far as there were reasonable grounds to believe that people would be there. In Waldron v. Railroad, 71 N.H. 362, the engineer had no reason to think the plaintiff would go on the track, and that fact broadly distinguishes that case from the present one. The legal principle governing the point "was fully stated in the general instructions. Each party had an opportunity in argument to apply it to his view of the facts, and it was not error of law for the court to refuse to give instructions on its application to particular evidence." Rublee v. Belmont, 62 N.H. 365, and cases cited.
There was no error in the refusal to give the forty requested instructions. The instruction that if Piper knew the outside tracks were blocked he could not recover was rightly refused. As has been heretofore indicated, this fact would not be conclusive of the case.
The instructions relating to the details of Piper's reliance upon the custom of the switching engine to wait for the Boston train were included in the general instructions on that subject. The test given to the jury was the usual one — reasonable conduct under the circumstances of the case.
The instruction that the evidence showed that after the engineer saw Piper he did all he could to avoid the accident was properly refused, as relating to an issue not submitted to the jury. They were told that they might find negligence in the matter of a general warning, of failure to set and keep a proper lookout, or of excessive speed. But it is also true that the evidence was not conclusive that the engineer stopped as quickly as he could. There was testimony that if the engine was not going faster than the engineer testified that it was, it could have been stopped in less than half the distance the plaintiff testified that they dragged him. From this it could be found that the engineer did not do everything required of him after he saw Piper.
The instruction that the engineer was warranted in assuming that Piper would stop before he reached the track was properly refused. Minor v. Railroad, 73 N.H. 317.
The instructions wherein the court was requested to charge the jury as to the effect of specified evidence were properly refused. Having correctly stated the general rules of law applicable to the facts, it was not incumbent on the court to make a specific application of them. Rublee v. Belmont, 62 N.H. 365.
Exceptions overruled.
YOUNG, J., dissented: the others concurred.
After the foregoing opinion was filed the defendant moved for a rehearing, and the parties were heard upon the motion by brief and by oral argument.