Guevin v. Manchester St. Ry.

• Decision Date: 08 November 1916
• Docket Number: No. 1336.,1336.
• Citation: 78 N.H. 289,99 A. 298
• Parties: GUEVIN v. MANCHESTER ST. RY.
• Court: New Hampshire Supreme Court

99 A. 298

78 N.H. 289

GUEVIN

v. MANCHESTER ST. RY.

No. 1336.

Supreme Court of New Hampshire. Hillsborough.

Nov. 8, 1916.

Transferred from Superior Court, Hillsborough County; Kivel, Judge.

Action by Frank J. Guevin against the Manchester Street Railway. Case transferred from the Superior Court on defendant's exceptions. Exceptions overruled.

Case by a husband for negligence resulting in the loss of his wife's services and society. Trial by jury, and verdict for the plaintiff.

The plaintiff's evidence tended to prove that his wife was injured at about 10 p. m., October 2, 1911, near the corner of Manchester and Elm streets in Manchester. Elm street runs north and south, and Manchester street east and west. The defendant's electric car ran north on Elm street and turned east into Manchester street, stopping beyond the corner for passengers. The rear fender protruded beyond the body of the car, but it was in such a position on Manchester street that every part of the car and of the fender was three or more feet east of the easterly line of the crosswalk. The car was well lighted, and an arc light was burning at the corner of Elm and Manchester streets. Mrs. Guevin, with her child, was proceeding south on the easterly sidewalk of Elm street for the purpose of boarding the car. She took the child, which weighed about 22 pounds, in her arms just before reaching the corner, and then started from the curbing towards the car. In so doing she tripped over the protruding fender, which she did not see, fell, and was injured.

Mrs. Guevin brought an action against this defendant in her own behalf for her injuries, and the present plaintiff was a witness for his wife at that trial, which resulted in a verdict for the defendant.

At the trial of the present action the defendant offered in evidence the record of that trial as follows:

"The Court (to Mr. Warren): You must be more specific; you must be more formal in your offer.

"Mr. Warren: I offer the record in the former suit for the purpose of showing that the writ in that action claimed, or set forth that she claimed, damages in that action for great expense in endeavoring to effect a cure, and that she introduced the testimony of Dr. O'Connor, through her own attorney, that his bill was February 4 or 5, 1913, at the time of the trial, $35; and that she introduced the testimony of one Dr. Knight of Boston; that his bill at the time of the trial was $5. I want to introduce the record of the result of that trial to show that those matters were litigated.

"The Court: You may show that there was evidence introduced at the former trial bearing upon those two bills. Beyond that I shall exclude all evidence.

"Mr. Warren: I except to the ruling for the purpose of showing that. I except to the ruling to prevent me from putting in the record of the former trial for the reasons last stated."

No evidence was introduced as to the amount of bills of Drs. O'Connor and Knight for medical services. At the close of the plaintiff's evidence, the defendant moved for a nonsuit, which was denied, and the defendant excepted.

The defendant's evidence tended to show that the fender had been pushed back into its place at the end of the route before starting on the trip, and that it was back in its place when the accident happened; that every part of the car was more than five feet east of the easterly line of Elm street and the crosswalk; and that Mrs. Guevin did not come in contact with the fender or any part of the car.

James A. Broderick, of Manchester, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester (R. L. Manning, of Manchester, orally), for defendant.

PEASLEE, J. 1. It could be found from the evidence that the fender projected unnecessarily, that the defendant knew fenders ought not to so project, and that it was an instrumentality wholly within the defendant's control. From this it could be found that the defendant was responsible for the condition there created. Boucher v. Railroad. 76 N. H. 91, 95, 79 Atl. 993, 34 L. R. A. (N. S.) 728, Ann. Cas. 1912B, 847.

The projecting fender was an unusual incumbrance of the street. It appeared from the defendant's evidence that rear fenders were customarily pushed in so that travelers passing the rear of the car had no occasion to be on their guard against such obstruction. It is a matter of common knowledge that travelers on foot who have occasion to cross a street do not confine themselves to the use of crosswalks, and that when they must diverge from a straight course they make the divergence as small as possible. Hence it could be found that the defendant ought to have anticipated that persons on the north side of Manchester street who wished to board this car would cross close to the rear thereof in order to reach the open door on the southerly side. There was sufficient evidence of the defendant's fault.

Whether the plaintiff's wife when crossing the street in the nighttime in the manner above indicated, and carrying a child weighing 22 pounds in her arms, ought to have noticed and avoided the unusual incumbrance was also a question for the jury. It is true as the defendant argues that the fender was as much a part of the car as the vestibule; but the distinction between the obligation to see and avoid a structure as large and visible as a house, and that to ascertain the presence of a small and unobtrusive piece of iron located a few inches above the ground is too manifest to require elaboration. The question whether her negligence would bar the present action has not been considered.

2. It is also urged that a nonsuit should have been ordered upon the ground that the husband has now no action for the loss of consortium caused by injuries negligently inflicted upon his wife. It was held otherwise in Booth v. Railway, 73 N. H. 529, 63 Atl. 578; but in view of the facts that one of the authorities then cited by the court (Kelley v. Railroad, 168 Mass. 308, 46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397) has since been overruled (Feneff v. Railroad, 203 Mass. 278, 89 N. E. 436, 24 L. R. A. [N. S.] 1024, 133 Am. St. Rep. 291; Bolger v. Railway, 205 Mass. 420, 91 N. E. 389; Whitcomb v. Railroad, 215 Mass. 440, 102 N. E. 663), and that the Connecticut court has followed these later cases (Marri v. Railway, 84 Conn. 9, 78 Atl. 582, 33 L. R. A. [N. S.] 1042, Ann. Cas. 1912B, 1120), the subject has been re-examined.

Two main reasons are stated in these last cases, and in argument here, for the position taken. It is said that the common-law action for injuries to the husband's right called the consortium was based upon loss of service, and that while other elements might be considered in aggravation of damages, they did not constitute a cause of action; that unless loss of service were shown no recovery could be had. No authority is cited to sustain this position. It seems to be conceded that none exists. But the argument is advanced that the state of the law and of society was such that this must have been so, and it is pointed out that no early case upholding such a recovery is to be found. It is apparently true that no positive statement upon the subject, one way or the other, is contained in the early authorities. But much is to be found which is highly significant, and which tends to the conclusion that there was no such limitation upon the right.

The action itself was per quod consortium amisit, not per quod servitum. Loss of service as the only basis of legal right was then recognized and discussed in cases for the seduction of a child or servant, but nowhere is such a statement found as to the right of a husband to recover for injuries to his wife. Undoubtedly the term "consortium" included service, but it also included society, comfort, and the sexual rights. In no early case is there a suggestion that any one of these is superior to any other as a basis for legal redress.

The husband recovered "sur le Prejudice que le Baron ad sustaine, viz.—le perder del' company et comfort que un Feme port a sa Baron." Guy v. Lusy, 2 Rolle, 51. The action was "for the particular loss of the husband, for that he lost the company of his wife, for which he shall have this action, as the master shall have for the loss of his servant's service." Same case sub nom. Guy v. Livesey, Cro. Jac. 501.

At a later date, in a suit for negligently overturning a stagecoach, whereby the plaintiff was injured and his wife was killed, "it appeared that the plaintiff was much attached to his deceased wife; and that, being a publican, she had been of great use to him in conducting his business. But Lord Ellenborough said the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife's society, and the distress of mind he suffered on her account from the time of the accident till the moment of her dissolution." Baker v. Bolton, 1 Camp. 493.

The same general rule was long ago applied in this state in an action for negligence. "The damages to her husband, from the loss of her services and society, and the expenses of her cure, follow uniformly and by legal necessity from the relation of husband and wife, which entitles him to her services and society, and charges him with her support." Hopkins v. Railroad, 36 N. H. 9, 14, 72 Am. Dec. 287.

These and other cases fully justify the statement in Marri v. Railway, 84 Conn. 9, 13, 78 Atl. 582, 583 (33 L. R. A. [N. S.] 1042, Ann. Cas. 1912B, 1120), that:

"The law has, however, never been solicitous to distinguish between these different elements of damage or to separate them. The older and more recent text-writers unite in stating that in an action per quod consortium amisit recovery might properly be had for the husband's loss, whether it partook of the one character or the other." 84 Conn. page 14, 78 Atl. 583, 33 L. R. A. (N. S.) 1042, Ann. Cas. 1912B, 1120.

The several rights involved all stood alike, and the conclusion seems...