Bullard v. Boston & M. R. R.

• Decision Date: 30 July 1886
• Parties: BULLARD v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

5 A. 838

64 N.H. 27

BULLARD

v. BOSTON & M. R. R.¹

Supreme Court of New Hampshire.

July 30, 1886.

Reserved case from Rockingham county.

Case for injuries received by the plaintiff in alighting from the defendants' passenger car at Newton Junction. Trial by a jury. For some three weeks prior to the injury the plaintiff had been traveling over the defendants' road from Newton Junction to Haverhill, Massachusetts, and back, daily. On the day of the injury she was returning from Haverhill in the afternoon train, and was in the rear car, by the conductor's direction. When the train stopped at the junction, this car was not opposite the depot platform, and the plaintiff was injured in stepping or jumping from the bottom step of the car to the ground, the distance being about three feet. She testified that she knew the rear car of the train did not ordinarily reach the platform, and that the place where she got out was a bad one; also that the conductor assisted her in alighting at the same place shortly before the time of the accident, and that he said it was a bad place. The accident occurred in the day-time. Rowell testified, subject to exception, that he had got out of the car several times at the same place, when the situation was the same as when the the plaintiff was injured, and that it shook him up. Mrs. Tucker testified, subject to exception, that it was the defendants' custom not to allow passengers to go forward from one car to another in getting out at stations; that passengers taking a train at Haverhill for upper stations were usually directed by the conductor to take the rear car; and that she had jumped off the train several times at the place where the plaintiff did, and had felt the effects for half an hour or so. The defendants moved for a nonsuit. The motion was denied, and defendants excepted.

The defendants' counsel, in his argument to the jury, commented on the fact that one of the physicians consulted by the plaintiff had not been called to testify. The plaintiff's counsel said the reason was because he found, from conversation with him, that he had not examined the plaintiff, and could give no testimony as to her condition. To this the defendants excepted. The court sustained the exception, and told the jury to disregard the statement of plaintiff's counsel; and thereupon counsel said he would take it all back. Verdict for the plaintiff, which defendants moved to set aside. Motion denied, and defendants excepted.

Marston & Eastman, for plaintiff.

Copeland & Edgerly and J. S. H. Frink, for defendants.

SMITH, J. 1. The testimony of Rowell was competent upon the question whether the defendants furnished safe and reasonable facilities for passengers to leave their trains at this point. Evidence that other passengers were injured in leaving the train at the same place tended to show that it was negligence in the defendants not to provide a larger platform. His evidence was also competent upon the question whether passengers left the train at this place with the knowledge or permission of the defendants. Hall v. Brown, 58 N. H. 93; State v. Manchester & L. R. R., 52 N. H. 528.

The testimony of Mrs. Tucker was competent upon the question whether it was negligence in the plaintiff to leave the car where she did. If her testimony was true, a passenger in the rear car for that station must choose between leaving the car at a place which might be unsuitable, and being carried beyond the point of his travel, a quasi prisoner. Hall v. Brown, supra; State v. Manchester & L. R. R., supra. Her testimony, that passengers taking the train at Haverhill for upper stations were usually directed by the conductor to take the rear car, was competent, as tending to show the usage of the road, and how the defendants regarded it as being a proper place for passengers to leave the train. And her testimony as to the effect produced upon her by jumping from the train was competent, for the same reason as similar testimony from Rowell was competent.

2. In moving for a nonsuit it must be assumed the truth of the plaintiffs evidence was conceded. The evidence introduced by her tended to show that the defendants stopped their train before the car in which she was riding had reached the platform; that the rear car did not ordinarily reach the platform; that the conductor had assisted her to alight at the same place a short time before; that other passengers were accustomed to leave the train at the same place; that she was in the rear car by the conductor's direction; and that passengers were not allowed to go forward from one car to another in leaving the train at stations. These facts were evidence from which the jury might find that the plaintiff exercised due care in leaving the train at a place which she knew was a bad one for alighting,—Baltimore & O. R. Co. v. Leapley, 4 Atl. Rep. 891, (Maryland court of appeals, June, 1886;)—and further might find that the defendants intended she should leave at that place. Forsyth v. Boston & A. R. R., 103 Mass. 510, and Frost v. Grand Trunk Ry., 10 Allen, 387, are distinguishable from this case. In those cases there was no evidence that the defendants held out any inducement to the plaintiffs to do the acts by which they were injured. Hurlbert v. New York Cent. R. R., 40 N. Y. 145, is more nearly in point.

3. The defendants' counsel, in his argument to the jury, commented on the fact that one of the physicians consulted by the plaintiff had not been called as a witness. This was fair matter of argument. The defendants could rightfully ask the jury to believe that, if the physician had been called, his testimony would have been unfavorable to the plaintiff. However slight the weight such an inference ought to have, the jury could not be instructed that, as a matter of law, they were bound to wholly disregard it. The case does not raise the question whether any argument could have been legally advanced in reply. No argumentative reply was made; but the plaintiff's counsel said that the physician had not been called because he found from conversation with him that he had not examined the plaintiff, and could give no testimony as to her condition. If this hearsay proof of a material fact had been received from a witness, its unrevoked admission would have been corrected by a new trial. The physician conversed without the moral and legal sanction of an oath, and without the test of cross-examination. His conversation, not provable by a witness, was proved by a person not a witness, not sworn, and not subject to cross-examination. Had the plaintiffs whole case been proved in the same way, the error, though extended in fact over more ground, would not have been raised to a higher degree of illegality. If the plaintiff could retain a verdict obtained or enhanced by her counsel's unsworn assertion of inadmissible hearsay in argument, the actual wrong done the defendants would be no greater were it accomplished by other persons giving the jury the same kind of proof privately and criminally. The court had no more authority to admit the hearsay, and dispense with the oath and the of portunity for cross-examination required by law, than to render judgment, without any form or pretense of trial, upon a rumor casually heard in the street.

The law does not transfer the defendants' property to the plaintiff as damages without a fair trial, and, in a legal sense, a trial is not fair when such statements as were made in this case have any influence favorable to the party making them. He is therefore bound to do everything necessary to be done to rectify his wrong, and restore to the trial the fairness of which he has divested it. He is legally and equitably bound to prevent his statement having any effect upon the verdict. This he cannot do without explicitly and unqualifiedly acknowledging his error, and withdrawing his remark in a manner that will go as far as any retraction can go to erase from the minds of the jury the impression his remark was calculated to make. But it is by no means certain that the jury will, at his request, disregard the fact stated. It is necessary they should be instructed that the unsworn remark is not evidence, and can have no weight in favor of the party improperly making it. It is the duty of the wrong-doer to request such instructions. The other party does his duty when he objects to the wrong inflicted upon him, and does not allow it to be understood that he waives his objection. In spite of the fullest and frankest retraction, and the most explicit and emphatic instructions to lay the remark entirely out of consideration, the trial may not be fair. It may not be in the power of the retracting counsel and the court to remove the prejudice. Their combined and vigorous exertions may not control the mental operations of the jury. The jury may not be able to wholly free their memory or their judgment from the unfair and illegal impression made by a plausible statement of fact, which may seem to them entitled to more respect than the rule of law that excludes it. The statement, withdrawn not because it is contrary to the fact, but because it is not a legal mode of proving the fact, may do as much damage as if it had not been withdrawn. Erroneous testimony corrected by the witness who gave it, and an erroneous ruling corrected by the judge who made it, stand on different ground.

If a party should sit as a juror in his own case, it might not be enough for his counsel to request him to ignore his own interest, and for the court to instruct him it is his duty to do so. If all the jurors had formed a decided opinion on the merits of the case before they were impaneled, the request of counsel, and the instructions of the court, not to be swayed by their former convictions, or by what they had heard at their lodgings, or read in the newspapers, during the trial, might not make the trial fair. After everything possible is done, the bias of interest or previous...