Lebrun v. Boston & M. R. R.

• Decision Date: 01 May 1928
• Citation: 142 A. 128
• Court: New Hampshire Supreme Court
• Parties: LEBRUN v. BOSTON & M. R. R.

142 A. 128

LEBRUN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

May 1, 1928.

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

Case by Thomas H. Lebrun against the Boston & Maine Railroad to recover damages for personal injuries. Trial by jury, and verdict for the defendant. Transferred upon the plaintiff's exceptions to the rulings of the court on impaneling the jury, and to the admission of evidence. Exceptions overruled.

See, also, 131 A. 441.

Joseph C. Donovan, of Concord, Winthrop Wadleigh, of Milford, and Robert W. Upton, of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

SNOW, J. 1. "Each party in a civil cause is entitled to three peremptory challenges of jurors drawn for the trial. The peremptory challenges shall be exercised alternately, beginning with the plaintiff." P. L. c. 339, § 19.

On impaneling the jury, both the plaintiff and the defendant exercised their first challenges. The plaintiff waived his second challenge, and the defendant did likewise. When the plaintiff attempted to exercise his third challenge, objection being made, the court ruled that he was not entitled to a third challenge, to which ruling he excepted. The plaintiff's position in argument is, in effect, that the statute gave him three several peremptory rights of challenge, none of which could be lost, except by waiver, and that his waiver of his second challenge, being specific, could not be extended to deprive him of his third challenge. The question raised is one of construction, in which little aid is afforded by decisions from other jurisdictions.

The statute invests the court with authority to prescribe "by general rules or special order" "the mode of drawing and impaneling the jury, and of exercising the right of peremptory challenge." P. L. c. 339, § 20. Notwithstanding that the provision granting such discretionary control has come down' to us, unchanged, from the earliest legislation on the subject (Laws 1859, c. 2213, § 1, G. S. c. 212, § 11, G. L. c. 231, § 16, P. S. c. 227, § 18), the power of the court thereunder has been limited by two successive amendments of the preceding section of the chapter of which it was then a part (P. S. c. 227, § 17). Each of these two amendments purported to confer upon the parties substantive rights in diminution of the discretionary power otherwise vested in the court. In 1895, section 17, c. 227, P. S., which theretofore contained merely the grant to each party of two peremptory challenges, was amended to read: "Each party in a civil cause is entitled to two peremptory challenges * * * and may challenge any juror at any stage of the drawing, providing his peremptory challenges are not then exhausted." Laws 1895, c. 67, § 1. In 1917, P. S. c. 227, was again amended by striking out section 17 (as theretofore amended) and inserting the provisions now in question, namely, "Each party in a civil cause is entitled to three peremptory challenges of jurors drawn for the trial. The peremptory challenges shall be exercised alternately beginning with the plaintiff. When the plaintiff and defendant have exhausted their challenges the court shall take unusual care and precaution that the jurors who take the places of the ones last challenged shall be wholly indifferent and impartial and reasonably satisfactory to both sides." Laws 1917, c. 12, § 1; P. L c. 339, § 19. (The italics are ours.) The evil sought to be remedied by the latter statute and the terms used to effect the legislative purpose connote a radical change in policy. The Legislature was not content merely to repeal the objectionable provision introduced by the act of 1895, and thus leave the "mode of exercising the right of peremptory challenge," as formerly, in the discretion of the court, but proceeded to lay down a definite statutory rule of procedure. For the unrestrained latitude as respects the time and order of the exercise of the right of challenge which had been sanctioned by the amendment of 1895, the Legislature of 1917 substituted the very definite requirement that the "challenges shall be exercised alternately beginning with the plaintiff"; and, with the apparent purpose of avoiding any hardships which might arise in the application of such a rule, directed the trial court, in the exercise of its discretionary power, to take unusual care as to the indifference, impartiality, and acceptability of the jurors who should be drawn to take the places of the ones last challenged.

In designating which party shall take the Initiative, and in the requirement of alternative action, the Legislature intended to confer upon the parties substantial and reciprocal rights as respects the order in which rejections should be made. Each was given, not only the right to make his challenge in his turn, but the right to have his opponent exercise his rights in the prescribed order so long as he had any objection to the panel as then made up. In other words, while at each stage of the drawing one party is entitled to reject a juror, his opponent is equally as well entitled to have such party precede him in the exercise of his right of challenge, if in the light of the existing composition of the jury there remains on the panel any one whom he cares to challenge. To be sure, the challenging party may waive his right, but such waiver is tantamount to a declaration that the panel as then constituted is satisfactory to him. When his opponent, acting on such implied declaration by a like waiver, declares his satisfaction with the panel, both parties have exhausted their peremptory rights of challenge as limited by the statute. The right to challenge a juror is not a right to select, but the right to reject. State v. Doolittle, 58 N. H. 92; Shulinsky v. Railroad, 83 N. H. —, 139 A. 189. The parties beginning with the plaintiff alternately exercised their rights of challenge so long as, upon their respective representations, either desired to reject any member of the panel drawn. Nor is it any answer to say that, if following the plaintiff's waiver the defendant had exercised his right to challenge instead of waiving, the plaintiff might have peremptorily rejected a juror who had sat in the panel preceding his waiver. The change in the composition of the panel might well justify such a course, and such action would not be in conflict with the implied declaration of satisfaction with the panel as it was constituted before the change.

The question as to the extent of the court's discretion to grant relief from the effect of a waiver based upon mistake or inadvertence, or to perfect an indifferent, impartial, and acceptable jury when the ordinary course of alternative challenge has been cut short by waiver, is not presented, and has not been considered. The ruling of the court was in denial of the plaintiff's claim as a matter of right to a third challenge under the circumstances presented, and is sustained.

2. The action is brought to recover for an injury alleged to have been received on August 7.1917, while the plaintiff was leaving the defendant's car shops where he was employed. He testified that a loose cross-plank in a defective walk was thrown up between his legs by the movement of a passing fellow pedestrian, locking his step, and tending to throw him; that in a successful effort to stay on his feet he received a strain from which he suffered severe pains in the abdomen, weakness, and a dripping of urine, all of which have continued at intervals ever since.

He had suffered a previous injury on November 1, 1915, while likewise in the defendant's employ, for the results of which he has since released the defendant upon settlement without suit. The defendant attributes the injuries sued for in whole or in part to this earlier accident. The plaintiff, on the other hand, while admitting that he then suffered a double rupture and passed blood with his water for a period of five days following the accident, denies that he suffered therefrom any dripping of urine or other trouble for which recovery is now sought. The parties are likewise in disagreement as to the circumstances of the first accident; the defendant claiming that the plaintiff was struck in the scrotum by a projecting bolt while being carried around by a reaming machine; the plaintiff on the other hand asserting that the injury occurred from his being thrown astride a studding which merely hit him "between the legs." To show the nature and extent and location of the injuries received by the plaintiff in 1915 the defendant offered the written report of Dr. Stillings, the railroad's surgeon, since deceased, of his examination of the plaintiff made on the day of the accident. Subject to the plaintiff's exception, the report was admitted as a record made in the regular course of business.

It was the practice of the defendant to have an examination and a written report by its surgeon in all cases of accidental injuries suffered by its employees. Dr. Stillings was the regular surgeon of the defendant. It was his duty to make a report in each case he was called to attend. Printed blanks were, provided for that purpose entitled "Boston and Maine Railroad. Surgeon's Report." The form, beside containing appropriate questions, included a diagram of the human form upon which the surgeon was required to mark in red the "location of injuries." It appeared in evidence that the plaintiff submitted himself to Dr. Stillings for examination on the day of the 1915 accident, and that two days later the doctor filed the report of his examination in the defendant's claim department. It was made upon the customary blank, filled out and subscribed in his own handwritting. Three entries therein are involved in the plaintiff's exception: (1) Under the heading "Nature and Extent of Injuries," the doctor reported "severe contusion of perineum and scrotum with rupture of the urethea. Blood mixed...