Laird v. Boston & M. R. R.

• Decision Date: 01 February 1921
• Docket Number: No. 1714.,1714.
• Court: New Hampshire Supreme Court
• Parties: LAIRD v. BOSTON & M. R. R.

114 A. 275

LAIRD

v. BOSTON & M. R. R.

No. 1714.

Supreme Court of New Hampshire. Merrimack.

Feb. 1, 1921.

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

Action by Millege Laird against the Boston & Maine Railroad under the Employers' Liability Act (Laws 1911, c. 163). Verdict for defendant, and case transferred from superior court on plaintiff's exceptions to the introduction 6f evidence. Exceptions sustained, verdict set aside, and new trial granted.

Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiff.

Streeter, Demond, Woodworth & Sulloway and William N. Rogers, all of Concord, for defendant.

PLUMMER, J. The plaintiff was employed by the defendants as a rivet heater, and his work required him to heat and carry rivets to the riveters. The rivets occasionally, before use, became too cold for riveting, in which case they were returned to the forge and reheated. Upon the occasion of the accident, November 3, 1913, a fellow employee returned a rivet to the forge by throwing it. This rivet hit the plaintiff in the right eye, causing the injuries complained of. It is the claim of the plaintiff, substantiated by his evidence, that his eye was seriously injured by the accident, and that his sight was very badly impaired; on the other hand, the defendants contend, and their evidence tended to prove, that the plaintiff's sight was not seriously affected. The defendants were permitted, subject to exception, to show by a draft examiner in the late war that he would not expect the plaintiff to be accepted for service by reason of his badly impaired vision. The defendants were then allowed, subject to exception, to introduce evidence that the plaintiff successfully passed the examination of the board of draft examiners and was accepted for service in the war. The effect of this testimony was to place before the jury the finding of the board of draft examiners, and to show that he had not suffered any such serious impairment of vision as his evidence indicated. In other words, it tended strongly to impeach the plaintiff's evidence, and to destroy the credibility of the plaintiff as a witness, not only upon the question of damages, but also upon the issue of liability; and, if the testimony was improperly admitted, the verdict should be set aside.

The finding of the board of draft examiners was not binding upon the plaintiff, except for the purpose for which it was made, and therefore evidence of it should not have been admitted. The examination of the plaintiff by the board was an ex parte proceeding, so far as he was concerned. He was summoned and compelled to appear and submit to the examination; but no hearing, in which he had any part, preceded their finding as to his physical condition. He had no opportunity to cross-examine the board, to discover how they reached their conclusions, or to take any action in his own behalf. "It is a well-established general rule that a litigant cannot be affected by the words or acts of others with whom he is in no way connected, and for whose sayings or doings he is not legally responsible." 22 C. J. 741. The findings of the board of draft examiners cannot stand any better as evidence against the plaintiff in this case than a judgment of a court, which is not evidence against one who is not a party or privy to it. Warren v. Cochran, 27 N. H. 339. The following statement of Richardson, C. J., in Lawrence v. Haynes, 5 N. H. 33, 20 Am. Dec. 554, is applicable to the. present case:

"It did not appear that either of these parties was in any way a party to those proceedings. The whole must therefore be considered, with respect to this plaintiff and defendant, as res inter alios acta, and we consider it as settled that no record of an adjudication can be used as evidence of the facts upon which it is founded, in a suit between persons who are strangers to the adjudication."

In Burrill v. West, 2 N. H. 190, it was said:

"Neither a verdict nor a judgment can, in general, be evidence for either party in an action against one, who was a stranger to the former proceeding, who had no opportunity to examine witnesses or defend himself."

"It is an axiom of the law that no man shall be affected by proceedings to which he is a stranger—to which, if he is a party, he must be bound. He must have been directly interested in the subject-matter of the proceedings, with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control, in some degree, the proceedings, and to appeal from the judgment. Persons not having these rights are regarded as strangers to the...