Hackett v. Boston & M. R. R.

• Decision Date: 01 November 1938
• Docket Number: No. 2986.,2986.
• Citation: Hackett v. Boston & M. R. R., 6 A.2d 139 (N.H. 1938)
• Parties: HACKETT v. BOSTON & M. R. R. HASKELL v. SAME.
• Court: New Hampshire Supreme Court

6 A.2d 139

HACKETT

v. BOSTON & M. R. R.

HASKELL

v. SAME.

No. 2986.

Supreme Court of New Hampshire. Merrimack.

Nov. 1, 1938.

Transferred from Superior Court, Merrimack County; Johnston, Judge.

Actions of case by Sara Lee Hackett, administratrix, and by Helen (Crowton) Haskell, administratrix, against the Boston & Maine Railroad for negligence resulting in the death of the plaintiffs' intestates.The cases were transferred from the trial term on plaintiffs' and defendant's exceptions.

New trial.

Actions of case, for negligence resulting in the death of the plaintiffs' intestates in a collision between an automobile in which they were riding and a locomotive of the defendant at a grade crossing in Concord.Trials together by jury resulted in a verdict of three thousand dollars for each plaintiff.

In each case the plaintiff moved that the verdict be set aside upon the grounds that (1) the damages were inadequate; (2) the verdict was a compromise; (3) the jury in assessing damages failed to apply the law to the evidence; (4) in assessing damages the jury were moved by passion and prejudice or fell into a plain mistake.

The Court found "that the damages awarded by the jury are inadequate and that the jury failed to apply the evidence to the law as given to them relating to damages.They failed to consider intelligently the evidence laid before them.Having determined that the defendant was liable for the death of the plaintiff's intestate in each case, the jury did not act properly in their consideration of the evidence relating to damages.The court finds that this appears clearly and definitely."It was ordered that each verdict be set aside in toto as against the weight of the evidence unless the defendant pay the plaintiff $4,500 instead of the verdict of $3,000.

The defendant excepted to the findings and orders generally.The plaintiffs both excepted to the orders in so far as they applied to the provisional order for increasing the verdicts, assigning as reasons that (1) the trial was unfair and the verdicts ought to be set aside [unconditionally];' (2) the proviso violates the plaintiffs' rights to a fair trial by jury as guaranteed by Article 20, pt. 1, and art. 90, pt. 2, of the Constitution of New Hampshire;(3) the proviso deprives the plaintiffs of their constitutional rights to an assessment of the damages by jury; (4, 5) the maximum fixed by the proviso is less than the damages which might upon the evidence reasonably be awarded in a fair trial; (6) the proviso is unreasonable and invades the substantive rights of the plaintiffs.

The plaintiffs both excepted to the Court's refusal to admit, upon the motions to set aside the verdict, an affidavit of one of the jurors, also to the exclusion of certain evidence offered by the plaintiffs during the trial before the jury.

All questions of law raised by the foregoing exceptions were transferred by Johnston, J.The material facts appear in the opinion.

Robert W. Upton and John H. Sanders, both of Concord, for plaintiffs.

Demond, Woodworth, Sulloway, Piper & Jones, of Concord, for defendant.

PAGE, Justice.

These actions grow out of the accident that gave rise to the cases reported in Carbone v. Railroad, 89 N.H. 12, 192 A. 858.Although the present record includes none of the evidence upon the question of liability, it was admitted by both plaintiffs and defendant in brief and argument that upon the evidence that question was one for the jury.We shall consider later possible implications of the inference that reasonable men might have differed upon the question of liability and attend first to the principal contentions of the parties relative to the sufficiency or insufficiency of the verdicts.The uncontradicted evidence upon damages (none was introduced by the defendant) appears in the record.It is such as to support the Court's findings relative to the earning capacities of the decedents.Those findings were as follows:

"Mr. Hackett was trained as a plumber and electrician.He worked for the Boston & Albany Railroad as a plumber's helper where he received regular pay of Thirty (30.00) Dollars a week.When work was slack the pay would be from Fifteen Dollars ($15.00) up.In summers he worked for the J. T. Sweeney Tarvia Works, because the work on the railroad was slack, where he received Thirty-five (35.00) Dollars a week.For two or three years prior to the accident, he worked for Mr. Sweeney and maintained his job also with the Boston & Albany.He worked for Mr. Sweeney on leaves of absence from the Boston & Albany and also during some of his spare time while working for the latter.

"Arthur James Crowton, at the time of the accident, * * * worked for J. T. Sweeney driving a truck.When working full time he earned on the average Thirty-five (35.00) Dollars a week.When working away from home, he was allowed Fourteen (14.00) Dollars a week for his living expenses.He worked ten or eleven months a year."

The defendant argues that the jury were at liberty to disbelieve the evidence upon which these findings were based, either wholly or in part.There is no doubt that in general the jury may disregard or discount uncontradicted evidence.Andrew v. Goodale, 85 N.H. 510, 513, 161 A. 36;Morrison v. Railroad, 86 N.H. 176, 178, 164 A. 553;Trudeau v. Ice Company, 89 N.H. 83, 85, 192 A. 491.In the pending cases it is urged that the only evidence of earnings was the testimony of the decedents' widows, who are interested parties; that their testimony was somewhat vague; that it contained seeming contradictions; and that it was unsupported by pay-roll records or testimony by the employers of the deceased.This is true.

Nevertheless, though the evidence of earnings were totally disbelieved, there still remained the evidence that Hackett was twenty-five years of age, with an expectancy of life of about thirty-eight years, and that he left a widow and a posthumous child; also that Crowton was thirty-one years of age, with an expectancy of life of about thirty-two years, and that he left a widow and two children aged five and four at the time of trial (about three years after the accident and death).These facts do not seem to be disputed by the defendant.Nor does any reason appear why, though supported only by the testimony of the widows, they should not be accepted and believed by the jury.Thus in each case one of the elements of damage in death cases, "the probable duration of his life but for the injury"(Pub.Laws, c. 302, § 12), may be taken as having been supported by the great weight of the evidence.There was also an overwhelming preponderance of evidence that each decedent was survived by beneficiaries likely to have derived support from the decedent, had he survived the accident, for a long period of years.

The "capacity to earn money" is the element upon which the defendant lays emphasis.It may be assumed that the jury disregarded or discounted the testimony of the widows in this respect as fully as circumstances warranted, but subject to the limitation that the verdicts establish the finding of some earning capacity.The jurors were correctly instructed in accordance with the rule of damages laid down in Morrison v. Railroad, 86 N.H. 176, 182, 164 A. 553.It is perfectly clear that the jurors believed that the decedents had some capacity and that they would have made some provision for their dependents during their lifetimes, even if th...