Ingalls v. Me. Cent. R. R.

• Decision Date: 28 June 1928
• Citation: 142 A. 695
• Parties: INGALLS v. MAINE CENT. R. R.
• Court: New Hampshire Supreme Court

142 A. 695

INGALLS

v. MAINE CENT. R. R.

Supreme Court of New Hampshire. Coos.

June 28, 1928.

Transferred from Superior Court, Coos County; Matthews, Judge.

Case, under Federal Employers' Liability Act, by Richard G. Ingalls against the Maine Central Railroad. Plaintiff took a voluntary nonsuit, and defendant excepted. New trial.

Case under the Federal Employers' Liability Act (35 U. S. Stat. 65, c. 149 [45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665]) to recover for personal injuries claimed to have been occasioned the plaintiff by the negligence of a fellow employee. Trial by jury. At the close of the plaintiff's evidence the defendant moved for a nonsuit. On denial of this motion the defendant rested its case and moved for a directed verdict. Both motions were denied, subject to exception. After argument to the jury, the plaintiff was permitted to enter a voluntary nonsuit, and the defendant excepted. The facts appear in the opinion. Transferred by Matthews, J.

Crawford D. Hening and Matthew J. Ryan, both of Berlin, for plaintiff.

Shurtleff & Hinkley and I. A. Hinkley, all of Lancaster, for defendant.

MARBLE, J."The rule in this state, when no trial except trial by jury is contemplated, is, that the plaintiff, before opening his case to the jury, may become nonsuit as a matter of right; after the case is opened, and before the verdict, leave to become nonsuit is within the discretion of the court; after verdict there can be no nonsuit." Doe, J., in Fulford v. Converse, 54 N. H. 543, 544. See, also, Judge of Probate v. Abbot, 13 N. H. 21; Stevenson v. Cofferin, 20 N. H. 288, 292; Wright v. Bartlett, 45 N. H. 289, 290; Pollard v. Moore, 51 N. H. 188, 191; Farr v. Cate, 58 N. H. 367; Benton v. Bellows, 61 N. H. 107; Upper Coos Railroad v. Parsons, 66 N. H. 182, 19 A. 10; Simpson v. Gafney, 66 N. H. 477, 30 A. 1120.

While it has been said that permission to dismiss his action will ordinarily be granted a plaintiff if no injustice is thereby occasioned the adverse party (Judge of Probate v. Abbott, supra) and that the incidental annoyance of further litigation, which may be compensated by costs, cannot be deemed prejudicial to the defendant in a legal sense (18 C. J. 1159), yet this statement is subject to the important qualification that some element of accident, mistake, or misfortune, as these words are usually interpreted, must enter into the situation before the plaintiff can rightfully invoke the court's discretion. It is true that a discretionary ruling like that in the present case must be based upon findings of fact, but the question whether such findings can reasonably be made is essentially one of law. Bunten v. Davis, 82 N. H. 304, 133 A. 16.

Reduced to simplest terms, the plaintiff's sole complaint is that the defendant did not see fit to present its case and thereby afford him an opportunity to cross-examine' its witnesses. If, as the court finds, the plaintiff relied on the reasonable expectation that certain witnesses would be called, he did not disclose that fact by any formal motion made at the time the defendant rested, but proceeded with the trial. Whatever facts he may have hoped to elicit on cross-examination, he was nevertheless required to establish a prima facie case before the occasion for cross-examination arose. It seems to be conceded that the "witnesses of the occurrence" '(presumably Bond and Fortin, later referred to) were available and that he could have summoned them if he had felt that his evidence was insufficient to justify a verdict in his favor. The defendant was not bound to offer its witnesses for cross-examination and would not be required to do so in case of a new trial. Consequently, the granting of the motion could confer upon the plaintiff no right with respect to the desired testimony which he could not have obtained by a simple request for permission to reopen the case and introduce the testimony as his own.

Although the trial was held at Lancaster on the defendant's representation that it could "more economically produce witnesses there in its employ," and although defendant's counsel during the trial expressed the intention of calling these witnesses, there is no suggestion that the defendant was committed to any definite course of conduct; on the contrary, the court has expressly found that "there was no representation by the defendant that any particular witnesses would be called." Moreover, the plaintiff does not pretend to have taken the statements or depositions of the witnesses, or even to have talked with them. So far as appears, their testimony is quite as likely to be detrimental as favorable to his cause. Under these conditions the finding of the trial court that justice to the plaintiff required the allowance of the nonsuit cannot be sustained.

The defendant, however, does not question the plaintiff's right to a new trial if the motion for a directed verdict was properly denied. As the parties agree that the case is governed by the Federal Employers' Liability Act, the fellow-servant doctrine has no application. Corbett v. Hines, 80 N. H. 22, 112 A. 796; Rockwell v. Hustis, 79 N. H. 57, 104 A. 127; Topore v. Railroad, 78 N. H....