Boucher v. Boston & M. R. R.

• Decision Date: 04 April 1911
• Citation: 79 A. 993,76 N.H. 91
• Court: New Hampshire Supreme Court
• Parties: BOUCHER v. BOSTON & M. R. R.

79 A. 993

76 N.H. 91

BOUCHER

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

April 4, 1911.

Transferred from Superior Court, Belknap County; Chamberlin, Judge.

Action by Marceline Boucher against the Boston & Maine Railroad. Case transferred from the superior court on exceptions to the denial of defendant's motion for nonsuit, and the direction of a verdict. Exceptions sustained.

Case for negligence. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1910, of the superior court. The defendants submitted the case upon their exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor. The plaintiff's evidence tended to prove that she was a passenger on the defendants' railroad from Nashua to Franklin; that, when the train reached Concord, she took a seat just vacated by another passenger, the window beside which was open; that soon after the train started the sash fell and injured her arm, the accident occurring about five minutes after the train left Concord, and after the conductor had passed through the car to collect the tickets. The plaintiff called as a witness one Clark, employed for 10 years in the window adjusting department of the Laconia Car Works, who was asked the following question: "Assuming that a car is standing still and a window is open, that the train starts and runs perhaps five minutes until it reaches full speed, if the window then falls, to what would you attribute the fault, if any?" Subject to exception, the witness answered: "To some part of the sash not being properly adjusted. The sash might be put part way up and bind, and drop down in that manner. It might not have been raised high enough for the bolt to engage the catch, and bind in the jamb so it would drop down by the car moving and working as they usually do, and the catch might possibly be out of order." He further testified that he did not know of anything which could cause the sash to fall, except that the frame might bind, thus preventing the sash going up far enough to permit the bolt to engage the catch, or that some defect might exist in the locking device. Upon cross-examination he testified, in substance, that a window so constructed or in such condition that the bolt might partially engage and hold the sash up for a time was not properly adjusted.

Napoleon J. Dyer and Shannon & Tilton, for plaintiff.

Stephen S. Jewett, for defendant.

PARSONS, C. J. "In this state the jury are not permitted to find material facts without evidence, or from mere conjecture, as to the truth of one of two or more equally probable or possible theories having different legal results." Reynolds v. Fibre Co., 73 N. H. 131, 59 Atl. 617; Stevens v. Stevens, 72 N. H. 360, 363, 56 Atl. 916; Cohn v. Saidel, 71 N. H. 558, 568, 569, 53 Atl. 800; Dame v. Car Works, 71 N. H. 407, 408, 52 Atl. 864; Horan v. Byrnes, 70 N. H. 531, 533, 49 Atl. 509; Gahagan v. Railroad, 70 N. H. 441, 444, 50 Atl. 146, 55 L. R. A. 426; Carr v. Electric Co., 70 N. H. 308, 310, 48 Atl. 286; Deschenes v. Railroad, 69 N. H. 285, 46 Atl. 467; Wright v. Railroad, 74 N. H. 128, 134, 65 Atl. 687, 8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949. "Negligence is a fact for the plaintiff to prove by a preponderance of the evidence; a fact for the jury to find or not, without any presumption of law one way or the other." Paine v. Railway, 58 N. H. 611, 613; Gahagan v. Railroad, 70 N. H. 441, 444, 50 Atl. 146, 55 L. R. A. 420. "Where the evidence is equally consistent with the absence as with the existence of negligence in the defendant, the plaintiff cannot recover." Foss v. Baker, 62 N. H. 247, 250.

But, as the existence of negligence is usually an inference of fact to be drawn from the facts proved, it is not necessary that the evidence should be direct. The fact maybe inferred from circumstances, as well as the equally essential fact of the plaintiff's care. Murray v. Railroad, 72 N. H. 32, 40, 54 Atl. 289, 61 L. R. A. 495, 101 Am. St. Rep. 660. "Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Scott v. London Docks Co., 3 H. & C. 596; Foss v. Baker, 62 N. H. 247, 249.

The plaintiff, having traveled safely in one of the defendants' trains from Nashua to. Concord, while the train was at the latter station, changed her seat to one then vacated by another passenger beside an open window. Shortly after the train started from Concord the sash of the window fell upon her arm, causing the injury complained of. Aside from the fact that the sash fell after the train had been in motion about five minutes, there was no evidence of any defect in the window or its appliances. An expert upon the adjustment of car windows, called by the plaintiff, assigned the fall of the sash to the fact that it was not put up far enough to engage the catch, or to a fault in the catch designed to support it when raised. In other words, the sash fell because the person who raised it left it insecurely fastened, or the fastening device was insufficient. In the one case the person opening the window may have been in fault; in the other, the defendants. The sash may have remained up for a time because it bound in the casing, as the expert suggested, or because the catch was only partially engaged (Faulkner v. Railroad, 187 Mass. 254, 72 N. E. 976) or because the person raising it attempted to secure it in some other way and failed. In the absence of any defect in the window, sash, or fastening device, the only cause to which its fall could be ascribed is the act of the one who raised the sash and left it improperly secured. It is not common knowledge that windows in ordinary passenger coaches are opened only by railroad employés, and it could not therefore be found without evidence that the defendants left the window in an unsafe condition. It is not claimed that there was anything about the appearance of the open...