Dziedzie v. NewMkt. Mfg. Co.

• Decision Date: 05 January 1927
• Citation: 136 A. 261
• Parties: DZIEDZIE v. NEWMARKET MFG. CO.
• Court: New Hampshire Supreme Court

136 A. 261

DZIEDZIE

v. NEWMARKET MFG. CO.

Supreme Court of New Hampshire. Rockingham.

Jan. 5, 1927.

Transferred from Superior Court, Rockingham County; Burque, Judge.

Case for negligence for personal injuries by Antonio Dziedzie against the Newmarket Manufacturing Company. Trial by jury and verdict for plaintiff. Transferred on defendant's exceptions to denial of motion for nonsuit, to admission of evidence, and to argument of counsel. Verdict set aside.

For former opinion, see 81 N. H. 516, 129 A. 271.

William H. Sleeper, of Exeter, for plaintiff.

George T. Hughes and Stanley M. Burns, both of Dover (George T. Hughes, of Dover, orally), for defendant.

PEASLEE, C. J. The evidence for the plaintiff is substantially the same as on the former transfer. The claim of the defendant that it produced a large amount of evidence tending to deny the plaintiff's contentions (if well grounded) does not affect the result here. The question of the sufficiency of the plaintiff's evidence to take the case to the jury was finally determined by the former decision. Derosier v. Company, 82 N. H. ——, 134 A. 719, and cases cited. Production of conflicting evidence merely presented additional matter for consideration by the jury.

Exceptions to the admission of evidence that ten years before the accident the plaintiff was unable to learn to operate a plain loom are urged upon the authority of Leighton v. Sargent, 31 N. H. 119, 135, 64 Am. Dec. 323. In that case it was held that the possession of skill by a surgeon did "not presuppose a like degree of skill" two years earlier, and an exception to the. exclusion of the fact was overruled. It does not appear whether the decision was put upon the ground that the evidence could not have been received, or that it was remote enough to warrant its exclusion upon a finding that it would not be useful. Assuming that the decision is to be treated in the former aspect, and that it is sound law, it does not apply here. The manifest reason for it is that the skill might well have been acquired in the intervening time. The question involved related to the surgeon's attainments, and these might have been acquired at one time or at another. But here the issue is whether the plaintiff had normal mental endowment. It is matter of common knowledge that such quality does not ordinarily undergo considerable change. The distinction is that between things acquired and natural attributes. Evidence of the plaintiffs lack of intellectual capacity, when in his twenties, had a logical tendency to prove a similar lack ten years later. These exceptions are overruled.

At the close of the plaintiff's argument to the jury, the defendant claimed an exception to the following portion thereof:

"Gentlemen, I believe if the Newmarket Manufacturing Company could only get their board of directors together and give it careful and fair consideration sitting right in those very chairs that you are sitting in, gentlemen, they would say: 'Yes, just the same as those houses down there that George built, just the same as the mill and the produce and other things that we have got, are our honest assets, so Tony is our honest liability'—and whatever those different elements of damages figure up to, put it down."

Thereupon plaintiffs counsel made the following statement:

"A statement was made in my argument with regard to the board of directors of the Newmarket Manufacturing Company. Now, gentlemen, I want to ask you in behalf of this plaintiff not to pay any attention to that at all; and I regret that I made any statement about the board of directors, because that seems to be a point of objection here. And so please lay it out of your minds altogether, just as though I had not mentioned it."

The court charged the jury as follows:

"I just want to add one thing—I had a note of it, here. Something was said in the argument as to what the board of directors would do if this proposition was put up to them. I didn't follow the argument very closely myself, but objection was taken to it, and Brother Sleeper undertook to withdraw it. I...