Derosier v. New England Tel. & Tel. Co.

• Decision Date: 05 October 1926
• Citation: 134 A. 719
• Court: New Hampshire Supreme Court
• Parties: DEROSIER v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

134 A. 719

DEROSIER

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of New Hampshire. Hillsborough.

Oct. 5, 1926.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Case by Eva Derosier, administratrix, against New England Telephone & Telegraph Company for negligently causing the death of her intestate. Trial by jury and verdict for plaintiff. Transferred on defendant's exceptions. Exceptions overruled.

Robert W. Upton, John M. Stark, and Peter J. King, all of Concord, for plaintiff.

Drew & Carr, of Boston, Mass. (P. F. Drew, of Boston, Mass., orally), for defendant.

PEASLEE, C. J. The defendant did not move for a nonsuit or for a directed verdict at the usual time, but asked for a directed verdict after the charge to the jury. The motion was denied, and the defendant excepted. Objection to the consideration of the question sought to be raised in this manner is put upon the ground that the motion came too late.

The well-established rule is that an objection to the sufficiency of evidence is waived, unless taken at a time when there may still be an opportunity to supply the deficiency. Elwell v. Roper, 72 N. H. 585, 58 A. 507; Gendron v. St. Pierre, 73 N. H. 419, 62 A. 966; Farnham v. Anderson, 74 N. H. 405, 68 A. 459; Coles v. Railroad, 74 N. H. 425, 68 A. 868; Head & Dowst Co. v. Breeders' Club, 75 N. H. 449, 75 A. 982.

"* * * The defendant could not lie by until after the evidence, arguments, and charge to the jury were closed, and then first avail himself of an objection that was open to him, and which in fairness he ought to have taken as soon as the evidence for the plaintiff was closed, or, at latest, when the evidence was closed on both sides." Baldwin v. Wentworth, 67 N. H. 408, 409, 36 A. 365, 366.

If the rule laid down in the case last cited were strictly applied, the question presented could not be considered here. But, like all our procedure, the rule rests upon reason; and the reason for it is that the objection should be made known in season to give the plaintiff an opportunity to supply the defect, if he can. Hence, "if it appears from the record that the necessary fact is impossible of proof, the rule fails with the reason." Smith & Sargent v. Co., 78 N. H. 152, 160, 97 A. 872, 876. This exception to the rule is not applicable here, and one question is whether the motion was made at a time when the plaintiff could be permitted to introduce further evidence.

It is plain that according to the usual and orderly course of a trial the motion came too late. But our cardinal principle that procedure shall be such as justice and convenience require vests the presiding justice with a broad discretion in these matters. La Coss v. Lebanon, 78 N. H. 413, 417, 101 A. 364, and cases cited. The case could have been reopened for the reception of further evidence, if necessary, to promote justice. Manchester Amusement Co. v. Conn.,80 N. H. 455, 460, 119 A. 69, and cases cited. A motion made when and as this was could be entertained. Moreover, it was stated at the argument that the question whether the plaintiff had evidence to go to the jury was a matter discussed throughout the trial. Apparently everyone understood that the defendant claimed a lack of evidence. The plaintiff had seasonable notice of the claim. Under such circumstances, it would be a proper exercise of discretion to entertain this motion. The record does not state the grounds upon which it was denied. If it was because the motion came too late, the defendant would take nothing by an exception. If the motion was considered upon its merits, the exception would present the question usually raised at the close of the evidence. For the purposes of this decision, it is assumed that the ruling was upon the merits.

The issue of responsibility for dangers created by the leaning of the pole was considered upon the former transfer of the case. 81 N. H. 451, 130 A. 145. The question is no longer open for consideration....