Felch v. Concord R. R.

• Decision Date: 25 July 1890
• Citation: 29 A. 557,66 N.H. 318
• Parties: FELCH v. CONCORD R. R. (two cases).
• Court: New Hampshire Supreme Court

29 A. 557

66 N.H. 318

FELCH

v. CONCORD R. R. (two cases).

Supreme Court of New Hampshire. Hillsborough.

July 25, 1890.

Exceptions from Hillsborough county.

Actions by one Felch, as administrator of the estate of Willis Felch, and in his own right, against the Concord Railroad. A motion to set aside general and special verdicts in favor of plaintiff was denied, and defendant excepts.

Two actions were tried together, one by the plaintiff, as administrator, for injuries resulting in the death of his minor son, Willis Felch, and one by the plaintiff in his own right for medical and surgical attendance upon Willis, and for damage to the plaintiff's team from the same accident. The plaintiff's evidence tended to show that on the 9th of February, 1883, Willis Felch, son of the plaintiff, of the age of about 11 years, under the direction of his father, drove his father's team and load of wood across the track of the defendant's railroad, about 15 rods east of a highway crossing. Having crossed the railroad track to the southerly side, he drove easterly upon the railroad bed, near the southerly track, seven or eight rods further, and while there, unloading his wood, the defendant's pay train passed, striking the boy, and inflicting injuries from which he died the same day. The plaintiff was engaged in hauling wood under contract with the owners to the railroad to which it had been bargained. At the time of the accident the plaintiff with his servants and teams had been hauling wood for several days in the manner and over the route taken by the deceased, and the tracks made by the sleds in crossing and going along upon the railroad track were visible. At the close of the plaintiff's evidence the defendant moved for a nonsuit because there was no evidence that at the time of the injury the boy, Willis, was rightfully on the track of the railroad, and no evidence that he was wantonly and willfully run upon by the defendant, and injured. The motion was denied, and the defendant excepted. There was no exception to the instructions of the court to the jury. The following special questions were submitted to the jury: (1) Was the boy, Willis Felch, rightfully on or near the track with his team at the time of the accident? (2) Was the defendant guilty of wanton and willful or reckless conduct at the time of the accident? (3) Was the boy, Willis Felch, exercising due and proper care in being on or near the track with his team, as shown by the evidence at the time of the accident? (4) Was the plaintiff, Hiram M. Felch, exercising due and proper care in allowing his boy, Willis Felch, to go upon the track with his team? (5) If the boy, Willis Felch, was rightfully at the place of the accident, was the railroad in the exercise of ordinary care? The first four of the questions were answered in the affirmative; the last one in the negative. The jury returned a verdict for the plaintiff in each case, which, and the first four special verdicts, the defendant moved to set aside, because there was no evidence that the boy, Willis, was rightfully on the track of the railroad, nor that the defendant at the time was guilty of any wanton, reckless, or willful conduct in the premises, nor that the plaintiff or the boy, Willis, was, either of them, in the exercise of due and proper care in Willis being on the track or permitted to be there at the time. The special verdict— that the defendant wantonly and willfully ran upon the boy, and killed him—was set aside as having no support in the evidence, and the plaintiff excepted. The motion to set aside the general verdicts and the other special verdicts was denied, and the defendant excepted.

R. J. Peaslee and Burnham & Brown, for plaintiff. J. W. Fellows, Sulloway & Topliff, and Briggs & Huse, for defendant.

CARPENTER, J. The motions (1) for a nonsuit, and (2) to set aside the verdict rest on the same ground, and were properly denied. It was unnecessary for the plaintiff to prove that Willis was rightfully on the defendants' track, or, if he was wrongfully there, that the defendants wantonly or willfully ran upon and injured him. Upon the question whether the plaintiff or the defend ants were entitled to a verdict, the first four special findings of the jury were immaterial. Evidence tending to prove that the defendants wantonly or willfully drove their engine upon Willis was irrelevant, except, perhaps, on the question of damages. Fay v. Parker, 53 N. H. 342; Bixby v. Dunlap, 56 N. H. 456. They were equally liable whether they negligently or willfully caused the injury. Evidence tending to show that Willis was rightfully or wrongfully on the track was competent for the jury to consider in determining the measure of care which the defendants were bound to exercise. Greater watchfulness might reasonably be required against expected than unexpected danger. But the unexpected presence of Willis on the track through his own or his father's negligence, or as a willful trespasser, would not relieve the defendants from their obligation...