Hebert v. Boston & M. R. R.

• Decision Date: 03 October 1939
• Citation: 8 A.2d 744
• Parties: HEBERT v. BOSTON & M. R. R. (two cases).
• Court: New Hampshire Supreme Court

8 A.2d 744

HEBERT

v. BOSTON & M. R. R. (two cases).

Supreme Court of New Hampshire. Hillsborough.

Oct. 3, 1939.

BRANCH and WOODBURY, JJ., dissenting.

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

Actions on the case by Henry Hebert and George Hebert, respectively, against the Boston & Maine Railroad, to recover damages for negligence resulting in a collision between a truck, in which plaintiffs were riding, and defendant's train. Verdicts for plaintiffs, and defendant brings exceptions.

Judgments for defendant.

Actions on the case, for negligence resulting, as is alleged, in a collision between the gasoline-motor train of the defendant and a truck driven by the plaintiff George. The plaintiff Henry was a passenger, as also was Oscar Lavallee, whose suit has been separately disposed of by prior trial and transfer. The collision took place on January 30, 1934, at a grade crossing in Weare. Trial by jury resulted in verdicts for both plaintiffs.

The defendant seasonably moved for directed verdicts and excepted to the denial of its motions. It also excepted to the admission of certain evidence and to denial of its motions to strike out evidence.

Paul J. Doyle and Daniel J. Healy, both of Manchester for plaintiffs.

Warren, Wilson, McLaughlin & Wiggin, of Manchester, (J. Walker Wiggin, of Manchester, orally), for defendant.

PAGE, Justice.

This case arises from the same accident that was considered in Lavallee v. Boston & M. Railroad, 89 N.H. 323, at page 325, 197 A. 816, at page 817, where it was said: "We are unable to discover in the evidence, however, any basis for the finding that failure of the engineer to give the crossing signals was the legal cause of the accident. Under ordinary conditions, the driver of the truck would have had ample time and space in which to stop before reaching the track after he discovered the approach of the train [when he was 119 feet from the track]. It is plain that the efficient cause of the collision was the icy condition of the road which prevented the operation of the brakes. It may be argued, however, that if the statutory signals had been given, and had been heard by the driver, he would have stopped before reaching the [second] crest of the grade. The answer is that the burden was upon the plaintiff to prove the causal connection between the negligence complained of and the collision, and the case is bare of evidence upon which to base a conclusion that the conduct of the truck driver would have been different if he had received earlier notice of the train's approach. He made no such claim in his testimony, and the probabilities are all against it."

In the present cases the driver, thus forewarned, attempted to supply the deficiency in the evidence. Before reciting his new testimony, it will help to its understanding if we describe the contours of the highway upon which the driver approached the crossing. He had first to traverse an up-grade of a length and pitch not disclosed by the evidence. The grade was so great, however, and the surface so icy, that he felt obliged to take it at a speed of fifteen miles per hour, "because it was slippery, you know; if I went slower than that, I wouldn't make it." It is thus clear that when the truck reached the top of the hill, which may be called "the first crest", its speed was fifteen miles per hour.

From the "first crest" the road sloped gradually for an undetermined distance, then flattened for a very short distance, and finally, from what may be called "the second crest", pitched downward more abruptly for a distance, then decreased somewhat, but continued to the crossing. The second crest was 119 feet from the track. It was at this point that the driver first discovered the approaching train and locked his brakes. The truck was then going about twelve or fourteen miles per hour, and entered a slide which carried it to the track, where its front collided with the front of the train. As it reached the crossing the speed of the truck had been decreased to about four or five miles per hour.

The new testimony of the driver was as follows: "Q. Did you know whether or not there was a train about that time? A. Not at that time; I knew there was a train in the forenoon; if they blew the whistle I planned to stop; I had plenty of chance to stop." There was no objection to this answer until after the plaintiffs had rested. Having by this unresponsive answer shown his anxiety to make out a case of causation, the witness was questioned briefly about the time, about the up-grade and the succeeding down-grade as far as the crossing. He then testified that he took the up-grade at fifteen miles per hour in order "to make it" and that he knew when he went up what was the succeeding grade to the crossing. Then occurred the following:

"Q. As you went up that hill, what were you doing, in respect to making any effort to find out if a train was coming? A. If they blew the whistle, I had plenty of chance to stop at the top of the hill." Again the anxious unresponsive answer remained without objection until after the plaintiffs rested.

"Q. What were you doing to find out if they blew a whistle? A. I was listening.

"Q. Why were you listening for a whistle, going up the hill? [Objection; no answer].

"Q. Why were you listening for a whistle at that point? A. I knew there was a train coming that forenoon.

"Q. If the whistle had been blown, and you heard it, when you were going up that grade, Mr. Hebert, what did you intend to do? [Admitted, subject to exception, as relevant to the driver's state of mind, and then read to the witness with the addition, 'What did you have in your mind of doing?"]. A. If I had heard the whistle, I would have stopped."

Subsequently the driver was asked regarding a previous time when he had been over the crossing. His totally unresponsive answer, "If it blew the whistle that day I had plenty of chance to stop," was not objected to until after the plaintiffs had rested. The defendant then moved to have the several unresponsive answers stricken from the record, and excepted to the denial of its motions.

The responsive answer, admitted subject to exception, was proper as tending to show the quality of his act. The driver's state of mind was relevant to the question of his own due care. Furthermore, attention to discover whether a signal was given, plus intention to stop in case it was heard, plus the act of proceeding without stopping, might be relevant to show that no signal was given. Bradley v. Obear, 10 N.H. 477; Wiggin v. Scammon, 27 N.H. 360; Morrow v. Moses, 28 N.H. 95; Moore v. Davis, 49 N.H. 45, 6 Am.Rep. 460; Caverno v. Jones, 61 N.H. 623; Smith v. Boston & M. Railroad, 87 N.H. 246, 257, 177 A. 729. The unresponsive answers of like purport could not be found necessarily to be harmful if the responsive answer was admissible.

But though the matter objected to was superficially relevant and admissible, its admission must be subjected to the primary test of its value. The decision of the presiding justice that evidence is admissible depends upon a finding that it is "fit to be considered" by the jury. Its admission, however, is ordinarily subject to the determination of the jury whether it is adequate to establish the fact to prove which it was offered, and the jury may find that "completeness of proof is lacking." If a finding of incompleteness of proof is conclusively shown upon the record, the testimony should have been excluded or withdrawn from the jury. If the process of preliminary weighing by the court is fully performed, "that which is not worth considering, for one reason or another affecting its value, never reaches the auxiliary functionaries, the jurors * * * for the Court will of course allow to be considered only such evidence as is worth submitting to men who will judge only by the common and practicable tests. * * * The judge, in his efforts to prevent the jury from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty reasoning, has constantly seen fit to exclude matter which does not rise to a clearly sufficient degree of value. In other words, legal relevancy denotes, first of all, something more than a minimum of probative value. Each single piece of evidence must have a plus value." 1 Wigmore, Evidence, 2d Ed, § 28.

In the illustrations appended to the passage just cited, the author quotes the following:

"Juries are taken promiscuously from the mass of the people. * * * They have generally no previous preparation or possible knowledge of the matter to be tried; and they decide in a space of time too short for any nice or critical disposition. These Judges, therefore, of necessity must forestall the evidence where there is doubt of its competence, and indeed observe much on its credibility, or the most dreadful consequences might follow. The institution of juries, if not thus qualified, could not exist." Edmund Burke, Report to the House of Commons.

"The very structure of the system thus produced points to the reason, when we observe its constant, anxious, and overanxious endeavor to prevent the tribunal to which the evidence is principally addressed from being confused and misled, and from dealing with questions which it has no right to deal with." Thayer, Preliminary Treatise on Evidence, 2.

Where evidence not "of value" is submitted to the jury, whether because of active error of the presiding justice or because the latter has not the time to analyze the content sufficiently, the court of appeal, which is not pressed for time, may analyze it and dispose of it as justice requires. Thus the taking of a voluntary nonsuit has been declared no evidence at all that the plaintiff believed, when he brought the action, that he had no case. Cohn v. Saidel, 71 N.H. 558, 53 A. 800. When a witness asserts the happening of a physical impossibility, a finding that such a thing occurred will not be sustained. Brown v....