Bresnehan v. Gove

• Decision Date: 04 February 1902
• Citation: 51 A. 916,71 N.H. 236
• Parties: BRESNEHAN v. GOVE.
• Court: New Hampshire Supreme Court

51 A. 916

71 N.H. 236

BRESNEHAN

v. GOVE.

Supreme Court of New Hampshire. Hillsboro.

Feb. 4, 1902.

Exceptions from Hillsboro county.

Action by Thomas A. Bresnehan against Daniel N. Gove. Finding for defendant, and plaintiff excepts. Exception overruled.

Case by a minor, by his next friend, for negligently driving a team and running upon him on Spruce street, in Manchester, January 14, 1896. At the time of his injury the plaintiff was about 11 years old, and of ordinary size and intelligence for one of that age. His home was at the southeast corner of the intersection of Lincoln street, which runs north and south, with Spruce street which runs east and west. When there was good sleighing. Spruce street was used as a speedway, under regulations by the city anthorities. The plaintiff knew this street was used for speeding, and had been warned by his father to look out for horses. On the day of the accident he was on the north side of Spruce street. The speeding was about over. A store sleigh was driven south on Lincoln street, and around the corner into Spruce street, going east keeping to the left of the center of the street The plaintiff Jumped upon the sleigh and rode about 100 feet, when he got off, and began to run southwesterly across Spruce street, toward his home. The defendant was driving east on the southerly side of Spruce street at a distance of 4 or 5 feet from the curbing, and at the rate of 8 to 10 miles an hour. When about 200 or 300 feet west of Lincoln street he saw the store sleigh turn the corner, and later saw the plaintiff get on and off the sleigh and run across Spruce street At first the plaintiff ran southwesterly until within about 5 feet of the curb, when he stopped and hesitated, turning northerly, and not seeing the defendant's team. He was probably somewhat confused by the shouting of boys who were warning him. He then had time to get across. While standing in that position he was struck by the defendant's horse and injured. Upon these facts, the referee found the defendant was not guilty.

Joseph W. Fellows, for plaintiff.

George W. Prescott and Herbert S. Clough, for defendant.

WALKER, J. The plaintiff assumed the burden of showing by a preponderance of evidence that the defendant was guilty of negligence which naturally resulted in or caused the injury complained of, and that he himself was exercising due care. That there was competent evidence in his favor upon both of these issues may be true; but the question is whether the facts disclosed by the case render it certain, as a proposition of law, that he is entitled to a verdict Although the referee has found a general verdict in favor of the defendant the plaintiff insists that the law applicable to the facts renders such a result erroneous, and demonstrates that a verdict in his favor should be ordered. In other words, his position is that the reserved case conclusively establishes the fact that the defendant's negligence was the proximate cause of the plaintiff's injury; for, if it appears that the referee's general finding may be legally supported by the facts, the verdict must stand, although some other tribunal might have reached the opposite result upon the same evidence. No specific findings are reported upon the issue of negligence presented by the case; and since the determination of those issues depends upon inferences of the existence or nonexistence of reasonable care and prudence in the conduct of the parties, to be drawn from the reported facts, the duty of drawing such inferences would fall within the appropriate province of the trior of the facts (Nutter v. Railroad Co., 60 N. H. 483, 485; Stark v. Village of Lancaster, 57 N. H. 88, 93), unless it appears that reasonable men could not differ as to the conclusions warranted thereby (Hardy v. Railroad Co., 68 N. H. 523, 536, 41 Atl. 179). The referee has found that when the defendant was some distance from the place of the accident, the plaintiff started to run across the street and that if he had continued to run in that direction he would have reached the sidewalk, and avoided the collision with the defendant's team. If it be conceded that the plaintiff's act in running across the street was not a negligent one, under the circumstances, it was competent for the referee to find that his ceasing to run, and standing in the street in front of the defendant's approaching team, was negligence which was the proximate cause of his injury. If a man in the full possession of his faculties had done the same thing under the same circumstances, it...