Emery v. Boston & M. R. R.
| Decision Date | 28 July 1893 |
| Parties | EMERY v. BOSTON & M. R. R. |
| Court | New Hampshire Supreme Court |
Exceptions from Rockingham county.
Action by Jotham Emery, administrator of the estate of Hannah E. Emery, deceased, against the Boston & Maine Railroad for personal injuries to his intestate. There was a verdict for plaintiff, and defendant brings exceptions. Overruled.
The plaintiff's evidence tended to prove that the plaintiff was in feeble health before the accident; that she took passage in the defendant's ears from Boston to Portsmouth; that the train stopped at the Portsmouth station; that she got up from her seat to go out; that the car was suddenly and without notice violently jerked backwards, throwing her upon the back of the seat in front of her, and causing the injury complained of; that the plaintiff's death resulted from such injury; that such a violent backward jerk of a train standing still could be caused only by something striking the cars, or by an attempt to back up the train; that it would not be produced by relaxing the air brakes. The defendant moved for a nonsuit, which the court refused. The court instructed the jury that they might consider any additional expenses of Mrs. Emery's sickness, caused by the accident, as an element of damages, if they found the plaintiff entitled to a verdict. To this instruction the defendant excepted.
S. W. Emery, for plaintiff.
Calvin Page and Frink & Batchelder, for defendant.
The motion for a nonsuit was properly denied. The violent and unusual backward jerk of the car, without notice or warning to the passengers, after the train had stopped at the station, and the deceased was getting ready to leave the car in the usual manner, afforded competent evidence tending to show negligence on the part of the defendant, and was sufficient to authorize the plaintiff to go to the jury. Foss v. Baker, 62 N. H. 247, 249.
The additional expenses occasioned to the deceased by the injury in her life, or to her estate after her decease, constituted a proper element of damages for the consideration of the jury, if they found the plaintiff entitled to a recovery. Laws 1887, c. 71, § 1; Pub. St. c. 191, §§ 8, 9, 12. As a general legal proposition, the instruction as to damages was correct, and the presumption is that it was applicable to the evidence. But, if it was inapplicable, as the defendant now for the first time claims it to have been, the general exception is unavailing. In...
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