Atherton v. Rowe

• Decision Date: 07 December 1937
• Citation: 195 A. 676
• Parties: ATHERTON et al. v. ROWE.
• Court: New Hampshire Supreme Court

195 A. 676

ATHERTON et al.

v. ROWE.

Supreme Court of New Hampshire. Hillsborough.

Dec. 7, 1937.

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

Case for negligence by Ives Atherton and others, executors, against Alice T. Rowe. Verdict for plaintiff. Case transferred from trial term on plaintiff's exceptions to certain rulings and on motion to set aside the verdict.

Judgment on the verdict.

Case for negligence to recover damages for personal injuries alleged to have resulted from a collision between two automobiles. Trial by jury; verdict for the plaintiff in the sum of $450.

The plaintiffs seasonably moved to set aside the verdict "because the damages are inadequate." "The question of whether the verdict is adequate" was reserved and transferred without finding or ruling by Burque, J. The plaintiffs' exceptions to certain rulings of the court upon questions of evidence and to the instructions to the jury were also transferred. Such facts as seem necessary to the understanding of the questions thus presented appear in the opinion.

Robert B. Hamblett, of Nashua, and Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiffs.

Devine & Tobin, of Manchester (Maurice F. Devine, of Manchester, orally), for defendant.

BRANCH, Justice.

The order of the trial court, which purports to transfer without finding or ruling the question whether the verdict is adequate, was made as of the September, 1935, term of the superior court, apparently before the case of Wasutskie v. Malouin, 88 N.H. 242, 186 A. 769, was decided. The appropriate procedure with reference to motions of this kind was indicated in Cyr v. Boston & M. Railroad, 88 N.H. 278, 282, 188 A. 3, 6, as follows: "The motions of the defendant to have the verdict set aside as excessive present an issue of fact for the court below (Wasutskie v. Malouin, 88 N.H. 242, 186 A. 769), which that court has not yet passed upon. Although we might now consider whether the evidence is such as to compel a finding one way or the other, we are of the opinion that the better procedure is for the court below to pass upon the issues presented by these motions before transferring them to us. Ordinarily this is a court of review on action taken, and no reason for a departure from the usual practice appears in this case."

In the present case, however, a decision upon the questions of law properly transferred has necessitated an examination of the evidence upon the question of damages and there appears to be no inflexible rule of law or procedure to prevent an expression of our opinion in regard to the adequacy of the verdict so far as that question might be presented to us for decision upon a proper record.

In order to facilitate an early disposition of the case we may, therefore, say that we find in the record ample evidence to sustain the defendant's theory that "Dr. Atherton suffered but slight injuries as a result of the accident for which this suit was brought; that her death was not caused by the accident but was due to her age and to systemic conditions consistent with her age, such as hardening of the arteries resulting in Angina Pectoris, which caused her death." The verdict of the jury, being thus in accord with a substantial portion of the evidence, cannot be disturbed upon the ground of inadequacy. Morrell v. Gobeil, 84 N.H. 150, 147 A. 413.

The most important question of fact presented at the trial was whether the death of Mrs. Atherton 10 months after the accident, at the age of 73 years and 8 months, resulted from the accident or from the degenerative processes incident to advancing years. Upon this point the court charged the jury as follows: "The first question which is most important for you to determine is whether the death of Mrs. Atherton was directly caused by the injuries she sustained as a result of this accident." To this instruction the plaintiff excepted as follows: "The plaintiff excepts to the instruction of the court that unless Mrs. Atherton's death was due directly to the accident, damages may not be recovered therefor, on the ground that the plaintiff is entitled to recover damages if her death was caused either directly or indirectly in consequence of the accident." The word "direct" has been so frequently used by this court to describe the legal consequences of an act that the use of this term by the trial court cannot, in itself, be regarded as error. Tuttle v. Dodge, 80 N.H. 304, 311, 116 A. 627, 632; Bowley v. Duca, 80 N.H. 548, 552, 120 A. 74; Derosier v. New England Tel. & Tel. Co., 81 N.H. 451, 463, 130 A. 145; Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 276, 133 A. 4, 46 A.L.R. 380; Brackett v. Bellows Falls Hydro-Electric Corporation, 87 N.H. 173, 175, 175 A. 822; Demers v. Flack, 88 N.H. 184, 185 A. 896.

In these decisions the word has been most frequently used to emphasize the point that the legal consequences of an act are not limited to those effects which were foreseen or foreseeable. "The question is not whether the damage was foreseen or foreseeable, but whether it in fact resulted as a direct consequence of the defendants' act." Tuttle v. Dodge, supra. The contrast thus indicated between the foreseeable consequences of an act and its legal consequences does not, however, limit the significance of the adjective "direct." The word is frequently used in the cases as a synonym for "proximate." There appears to be no inherent impropriety in the use of the term "direct cause" to indicate...