Lord v. Manchester St. Ry

• Decision Date: 20 June 1907
• Citation: 67 A. 639,74 N.H. 295
• Parties: LORD v. MANCHESTER ST. RY.
• Court: New Hampshire Supreme Court

67 A. 639

74 N.H. 295

LORD

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsborough.

June 20, 1907.

Transferred from Superior Court.

Action on the case by T. Harry Lord, administrator, against the Manchester Street Railway, for negligently causing the death of Matilda, Ouillette, plaintiff's intestate. Verdict for plaintiff. Transferred from trial court on defendant's exceptions. Exceptions overruled.

The plaintiff's evidence tended to prove the following facts: On September 28, 1905, Mrs. Ouillette was a passenger on one of the defendants' open cars, and was seated nearly over and a few feet from the fuse box. During her journey the fuse burned out with a loud report, and a sheet of flame, which streamed several feet above the floor of the car, seemed about to envelop her. All the passengers were frightened. Mrs. Ouillette jumped to the opposite side of the car to avoid the flame, and either stepped or fell from the car to the paved street, and was killed. The car was an old one and was running at a speed of about 15 miles an hour. Mrs. Ouillette had kept house for her husband and taken boarders. She left no estate. It appeared that fuse boxes are attached to the outside sills of such of the defendants' cars as are equipped with the appliance, and that passengers are often badly frightened when a fuse so located burns out. The fuse box can as well be placed under the vestibule, and in that event a burning fuse is not, likely to frighten passengers. The defendants knew that a fuse might burn out at any time, and that when such a thing occurred there would be a sharp report, varying, according to the strength of the electric current, from that made by a common firecracker to that made by a cannon cracker, and that the noise would be accompanied by a flame rising from a few inches to several feet above the floor of the car. The defendants moved for a nonsuit and for the direction of a verdict in their favor, on the grounds that the evidence did not disclose negligence on their part contributing to cause the injury complained of, and that Mrs. Ouillette's act in stepping from the car was not reasonably to be anticipated and constituted contributory negligence. The motions were denied, and the defendants excepted. A witness, called by the plaintiff, being asked what she and another female passenger did at the time of the accident, replied that they arose to jump from the car, and that the conductor "stopped us—kind of changed our senses." To this evidence the defendants excepted. A witness called by the plaintiff was asked what the custom of motormen was as to running cars at the place of the accident, and replied that when a car was waiting it was their practice to put on full power. The defendants excepted to this evidence, and also to testimony that Mrs. Ouillette was survived by four small children. Several witnesses who had been employed by the defendants testified that passengers were frequently frightened by the burning out of a fuse; but no witnesses were produced who had been so frightened, except those who were upon the car with Mrs. Ouillette. In closing argument, the defendants' counsel said that, if it were true that passengers were frequently frightened in that way, the jury would not have to rely on the testimony of discharged servants. "You could go out and find plenty of people who had either been frightened themselves, or had seen other people frightened." In answer to this, the plaintiff's counsel said: "Use your good judgment again, good, common sense. If we had the resources of the Manchester Street Railway, we would make the effort." To this the defendants excepted. In discussing the question of the defendants' fault, the plaintiff's counsel said that they knew, among other things, that "it was an old car," and were aware that electrical equipment "deteriorates with age." To this statement the defendants excepted.

Taggart, Dickinson, Wyman & Starr and Tuttle & Burroughs, for plaintiff. Burnham, Brown, Jones & Warren, for defendants.

YOUNG, J. 1. As it is common knowledge that all mechanical devices wear out, it cannot be said as matter of law that a fuse is not more likely to burn out in an old electrical appliance than in a new one. Hence there is no presumption that the defendants were prejudiced by the statement of the plaintiff's counsel, to the effect that they were in fault for using an old car, knowing that its electrical equipment would deteriorate with age. In the absence of evidence that electrical equipment is excepted from the general rule as to the effect of long continued use upon mechanical appliances, the statement of counsel was merely the conclusion fairly inferable from the evidence as to the age of the car.

2. The plaintiff produced no witnesses who had been frightened by the burning out of a fuse prior to the accident; and from that fact the defendants' counsel argued that the testimony that passengers were frequently frightened in that way was false. In other words, the jury were asked to infer, from the plaintiff's failure to adduce such proof,...