Glidden v. Brown

• Decision Date: 31 December 1954
• Citation: 110 A.2d 277,99 N.H. 323
• Parties: Arthur GLIDDEN, by his mother and next friend, et al. v. William H. BROWN.
• Court: New Hampshire Supreme Court

Page 277

110 A.2d 277

99 N.H. 323

Arthur GLIDDEN, by his mother and next friend, et al. v.William H. BROWN.

Supreme Court of New Hampshire.

Argued Dec. 7, 1954.

Decided Dec. 31, 1954.

McCabe & Fisher, Dover, Paul B. Urion, Rochester, and Harold D. Moran, Dover, for plaintiffs.

Burns, Calderwood & Bryant and Robert E. Hinchey, Dover, for defendant.

LAMPRON, Justice.

Plaintiffs maintain that the defendant was negligent as a matter of law when he poured this volatile liquid on the charcoal stove.Their contention is based admittedly on the case of Olena v. Standard Oil Company, 82 N.H. 408, 414, 135 A. 27.In our judgment there are essential differences in the two cases.

It was held in the Olena case that, if the decedent was burned from the exploding of oil while she was pouring it on a hot fire in a stove, she would be guilty of contributory negligence as a matter of law.

In this casethe defendant testified that he asked Arthur's father and his uncle, who were trying to start a fire in the charcoal stove, if there was any fire in it before he poured the anti-freeze and that they said: 'No, there is no fire in there.'He also testified: 'I couldn't see any visible fire myself.''I asked was there any fire in the place and from my own observation, I could see none there.''As I looked at the stove, I could see no smoke or blaze--no fire whatever.''I didn't think it was necessary [to put my hand on the stove to see if it was hot] from the standpoint that there had been no fire in the stove.'

The explosion demonstrated conclusively that there must have been some fire or heat in the stove at the time, but if the defendant's testimony was entitled to belief, and this was a question for the jury, we cannot say that his conduct was negligent as a matter of law.Webster v. Seavey, 83 N.H. 60, 61, 138 A. 541, 53 A.L.R. 1202;Buffum v. Buffum, 89 N.H. 210, 213, 195 A. 679.Defendant's negligence not being the sole conclusion which reasonable men could draw from these facts, plaintiffs' motions for a directed verdict and for judgment notwithstanding the verdict were properly denied, Ali v. Gingras, 97 N.H. 289, 290, 86 A.2d 336;Boothby v. Prescott, 97 N.H. 504, 505, 92 A.2d 661, as was their motion to set aside the verdict as against the law, the evidence, the weight of the evidence and because defendant was guilty of negligence as a matter of law.Condiles v. Waumbec Mills, 95 N.H. 127, 58 A.2d 726;Treadwell v. American Woolen Company, 98 N.H. 504, 508, 104 A.2d 395.

That part of plaintiffs' motion to set aside the verdict because 'the jury was confused and influenced by passion and prejudice and fell into a plain mistake,' was properly denied.Goddard v. Hazelton, 96 N.H. 231, 233, 73 A.2d 123.After deliberating for about ninety minutes the jury asked the Court for more instructions on the Mary Glidden claim.They asked if her claim could be allowed 'even if we find the defendant not negligent, even though we find him to be the cause of the accident.'The Court in the presence of counsel instructed the jury on the questions of due care, causation and contributory negligence.We find no error in these instructions and it is to be presumed that they and those previously given were followed by the jury in arriving at their verdict.Leonard v. Manchester, 96 N.H. 115, 120, 70 A.2d 915.

Both counsel made pre-view statements and the Court permitted the defendant, over plaintiffs' objection, to make an opening statement immediately after that of plaintiffs.They also excepted to the ruling that the defendant would be permitted to make an additional opening after the close of their evidence.Defendant's counsel however then merely stated to the jury that 'in view of the fact that you listened to evidence for a day and now know what this case is all about, we will make no further opening at this time.'We can see no prejudice in the conduct of the trial in this manner.LaCoss v. Lebanon, 78 N.H. 413, 417, 101 A. 364;Bowers, Judicial Discretion of Trial Courts, § 281;53 Am.Jur. 357.

Plaintiffs objected to cross-examination by the defendant pertaining to physical facts existing at the scene of the accident and the location of the parties with respect thereto.They argue that it should have been excluded as being argumentative.There was nothing improper in its allowance by the Trial Court.

R.L. c. 119, § 47andsection 48a, as inserted by Laws 1949, c. 127 relate to persons operating motor vehicles transporting explosives as a cargo or part thereof...