Batchelder v. Manchester St. Ry.

• Citation: 56 A. 752,72 N.H. 329
• Parties: BATCHELDER v. MANCHESTER ST. RY.
• Decision Date: 01 December 1903
• Court: Supreme Court of New Hampshire

56 A. 752

72 N.H. 329

BATCHELDER

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsborough.

Dec. 1, 1903.

Transferred from Superior Court; Wallace, Judge.

Action by May I. Batchelder against the Manchester Street Railway. There was a judgment for plaintiff, and defendants except. Exception sustained.

The evidence tended to prove the following facts: The defendants operated a line of street railway between the city of Manchester and Massabesic Lake in the summer of 1900, and at the latter place maintained a pavilion and a theater. They transported large crowds of people to and from the pavilion. On the evening of August 28th, the plaintiff, having attended the theater, was attempting to get upon a car to return to the city, when she was pushed under the car by the crowd and injured, in consequence of the failure of the defendants to take the precautions required by ordinary care to guard their passengers from injury. The plaintiff's counsel having stated in his opening to the jury that he desired to show the conduct of similar crowds at that place prior to the time of the accident, and the defendants objecting, the court directed the counsel to omit further reference to the matter until he offered the testimony. At the conclusion of the opening, counsel said: "Now, gentlemen, that is how the accident happened, and the blame we attach to the street railway is just this: That, with a full knowledge of conditions out there, they ran their car around that curve at a speed which was too rapid, under the circumstances; that, with those people hanging onto the sides of the car and being carried along with it, they ran it further down into the crowd that stood waiting for it on both sides of the track, and beyond the place where they are required to stop, the length of a car, striking against this girl, throwing her down under the car, and getting her foot under the wheels." The defendants excepted to this statement. At a hearing before the court in the absence of the jury, the question of the admissibility of testimony relating to the conduct of similar crowds on prior occasions was argued by counsel. The plaintiff offered to show "that other crowds, similar in numbers and character to the one at the time of the accident, assembled at the same place for the same purpose on almost all fair evenings during the summer of 1900 up to the time of the accident, and that, after the extra cars had gone at the close of the theater performance, a portion of them always went to the curve next north of the pavilion and attempted to board the cars-some of them seizing the grab-rails and running along with the car into the main body of the crowd, which always closed in and rushed and scrambled to get aboard of the car." The court excluded the testimony as a matter of discretion and because of its incompetency, and the plaintiff excepted to each ground of the ruling. The plaintiff's counsel asked a witness called by her immediately after the foregoing ruling, and who, it appeared, had been to the lake frequently on the defendants' cars prior to the accident that summer, the following questions, each of which was excluded, subject to the plaintiff's exception: "How did those crowds to which you have Just referred compare with the one on the night of the accident in other respects than as to numbers? What was the conduct of these crowds to which you have referred as being there previous to the accident, in regard to boarding or attempting to board the cars as they came in at or near the north curve? What was the custom or general practice of the crowds to which you have referred as to catching hold of the grab-rails on the east side of the car at or near the north curve, and running along with it until the car stopped, upon the occasions when you were there during the summer of 1900, previous to the accident?" After the court had excluded the questions, the defendants excepted to the statement of them in the presence of the jury. During the cross-examination of a witness for the defendants, a discussion arose respecting the competency of a question proposed by the plaintiff's counsel, who affirmed, in substance, that a much less degree of care would be required in the operation of the cars if there were a rail or some contrivance to keep people from getting on and off the cars while in motion than if there were none. The defendants' counsel said: "That depends upon the crowd." The plaintiff's counsel replied: "I have shown that. I offer now to show your conduct there with previous crowds that year and years before." The defendants excepted to this remark.

Brown, Jones & Warren, for plaintiff.

Taggart, Tuttle & Burroughs, for defendant.

CHASE, J. The ruling of the court excluding the testimony offered by the plaintiff was the law of the trial, even if upon further examination it should be found that the testimony was competent (Bullard v. Railroad, 64 N. H. 27, 5 Atl. 838, 10 Am. St Rep. 307; Feich v. Railroad, 66 N. H. 318, 320, 29 Atl. 557; Mitchell v. Railroad, 68 N. H. 96, 34...