Buffum v. Buffum

• Decision Date: 07 December 1937
• Citation: 195 A. 679
• Parties: BUFFUM v. BUFFUM.
• Court: New Hampshire Supreme Court

195 A. 679

BUFFUM

v. BUFFUM.

Supreme Court of New Hampshire. Hillsborough.

Dec. 7, 1937.

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

Action on the case by John J. Buffum, administrator of Bridget A. Buffum, deceased, against David W. Buffum. Verdict for plaintiff, and defendant brings exceptions.

New trial.

Action on the case, brought originally by Bridget A. Buffum, the defendant's mother, to recover for personal injuries alleged to have been sustained by her on May 20, 1934, by reason of the negligent operation of the defendant's automobile. Bridget A. Buffum died on January 28, 1936, and the action was prosecuted by her administrator, who claimed that the decedent's death was caused by the accident. Trial by jury and verdict for the plaintiff.

On the day of the accident the defendant drove the decedent, together with his wife and sister, to St. Joseph's Cathedral on Pine street in Manchester. His wife was seated beside him, and his mother and sister occupied the back seat. He stopped his car on the east side of Pine street, facing south. His wife and sister got out on the west or right-hand side of the car and walked around the rear of the car to the sidewalk. The decedent attempted to alight on the left-hand side, and while she was standing with one foot on the sidewalk and the other on the running board the defendant started the car suddenly and caused her to fall.

It was the defendant's principal contention at the trial that this accident had nothing whatever to do with the decedent's death. The reserved case contains the following statement: "It is agreed that counsel for the defendant did not refer to the question of liability either in direct or cross examination, his opening, or argument.

And the defendant did not introduce any evidence to dispute liability."

Exceptions to the denial of motions for a nonsuit and directed verdict are now waived, and the only exception on which the defendant relies is an exception to the following paragraphs of the charge:

"This case apparently has resolved itself into a very narrow compass. The facts of the case on the question of liability are not contradicted, so that you may accept liability as being established. And the only question that I can see that will bother you at all is the question of damages.

"The plaintiff brought this suit during her lifetime, arid since her death it has been prosecuted by the administrator. The suit of course is properly in Court, and all you have to consider is the amount of damages plaintiff is entitled to recover."

The plaintiff did not request this instruction or move for a directed verdict in his favor.

Timothy F. O'Connor, Myer Saidel, and J. Francis Roche, all of Manchester, for plaintiff. Devine & Tobin, of Manchester (John E. Tobin, of Manchester, orally), for defendant.

MARBLE, Justice.

After instructing the jury that the only question before them was that of damages, the presiding justice went on to distinguish between the measure of damages in the event of a finding that the decedent "did not die as a direct result of the accident" and the rule to be applied in case of a finding that her death was so caused. He next referred to the burden of proof on the issue of damages and then said: "The claim being made that defendants were negligent here must be proven, and is proven if, upon all the evidence in the case you are satished that the probabilities favor the claim that the defendants were negligent."

Invoking the rule which obtains in some jurisdictions permitting a judge to comment on the evidence (State v. LaVerne, 83 N.H. 419, 421, 143 A. 594), plaintiffs counsel suggest that the opening paragraphs of the charge merely embody the trial court's opinion of the merits of the controversy and that the jury must have understood from the instructions last quoted that...