Hutchins v. Macomber

• Decision Date: 31 July 1896
• Citation: 68 N.H. 473,44 A. 602
• Parties: HUTCHINS v. MACOMBER.
• Court: New Hampshire Supreme Court

44 A. 602

68 N.H. 473

HUTCHINS

v. MACOMBER.

Supreme Court of New Hampshire. Strafford.

July 31, 1896.

Exceptions from Strafford county.

Action by Olive A. Hutchins against George E. Macomber, receiver, etc. From the denial of a motion for a nonsuit, defendant excepts. Exceptions overruled.

Case for negligence. Trial by jury, and verdict for the plaintiff. The plaintiff's evidence tended to show that she was a passenger upon one of the defendant's cars on December 20, 1894; that the conductor stopped the car at a certain place at her request, to allow her to alight; that when she was upon the rear platform or lower step of the car, and about to get down, she noticed a team approaching at a high rate of speed on the side of the car on which she was, and requested the conductor to wait a moment for the team to pass; and that, after the team had passed, as she was putting one foot from the lower step to the ground, the car started quickly, and she was thereby thrown to the ground, and was injured. When the plaintiff rested, the defendant moved for a nonsuit on the ground that she had not shown affirmatively that she was not in fault. The motion was denied, and the defendant excepted.

Arthur G. Whittemore and William F. Nason, for plaintiff.

John Kivel, Robert G. Pike, and Worcester, Gafney & Snow, for defendant.

WALLACE, J. Before a recovery can be had in an action for personal injuries on the ground of negligence, it must be established not only that the defendant was negligent, but that the plaintiff was in the exercise of due care in respect to the occurrence from which the injury arose. The burden is upon the plaintiff to prove both these essential propositions. Although the question whether the plaintiff is in the exercise of due care is in form an affirmative proposition, yet, as was said In Mayo v. Railroad Co., 104 Mass. 137, 140, "it is not necessarily to be proved by affirmative testimony addressed directly to its support." If the circumstances of the case as adduced in evidence exclude all fault on the part of the plaintiff, or if they show nothing in his conduct to which negligence can be imputed, or to which the injury could, in whole or in part, be attributed, the exercise of due care may be inferred from the absence of fault, and may be proved as effectually as by affirmative testimony. Lyman v. Railroad Co., 66 N.H. 200, 20 Atl. 976; Mayo v. Railroad Co., supra. To warrant the ordering of the nonsuit, there must have been an...