Mason v. Dover, S. & R. St. Ry.

• Decision Date: 02 December 1919
• Citation: 109 A. 841
• Parties: MASON v. DOVER, S. & R. ST. RY.(two cases).
• Court: New Hampshire Supreme Court

109 A. 841

MASON

v. DOVER, S. & R. ST. RY.(two cases).

Supreme Court of New Hampshire. Strafford.

Dec. 2, 1919.

Transferred from Superior Court, Strafford County; Marble, Judge.

Actions by Richard R. Mason, individually and as administrator, against the Dover, Somersworth & Rochester Street Railway. Judgment for plaintiff, and defendant excepts. Transferred from superior court. Exceptions overruled.

Case, for negligence. Trial before Chamberlin, C. J., and a jury with verdict for the plaintiff. The suit was for injury from a collision, July 24, 1915, between the wagon in which the plaintiff was riding with his wife and one of the defendants' cars upon a highway in Dover. The plaintiff was thrown from his wagon by the collision. Subject to exception, the court permitted a witness to testifly that the plaintiff as he was getting up exclaimed, "Why didn't they stop the car?" The collision occurred shortly after a quarter before 8 in the evening. The plaintiff testified he lighted the lamp in his wagon at 25 minutes before 8, and that he was blinded by the headlight of the approaching car. The defendants called as a witness the superintendent of the lighting company which maintained a street light near the place of the accident, who testified that the company turned on the street lights by switches in the power station; that the time of turning on the lights was left to the judgment of the operating engineers; that, when in the judgment of the company it was so dark that lights were needed on the streets for traffic, they were put on; and that for the past 10 years practically one rule had been adopted, viz., that at a certain point about 600 feet distant from the station there were four posts for electric light and telephone wires; that the engineer watches these from 10 to 15 minutes before it is time to put the lights on; and that when they get so that he thinks that a man could not distinctly see them without lights he puts the lights on. The witness further testified that a record was kept in the company's office of the time when the lights were turned on. The defendants then offered the record to show that the light near the place of accident was not on at the time of the accident as bearing on the light or darkness of the day at the time. The court admitted the record showing the light was turned on at 7:55 p. m., as tending to prove the light was not on at the time of the accident, but ruled that the evidence was too remote to be useful upon the question of light or darkness at that time, and instructed the jury that the record was not to be considered by them "as tending to show that the lights were turned on when they ought to have been, earlier or later. * * * Lights are sometimes turned on too early, perhaps; sometimes they are turned on too late perhaps; sometimes there may be reasons for each of those things; and sometimes they are turned on when they ought to be. But we can't stop to investigate those questions, and so it is not submitted to you for that purpose." The defendants excepted to the refusal to admit the evidence for the purpose for which it was offered and to the instructions to the jury in relation to it. Transferred by Marble, J., from the February term, 1919, of the superior court.

Mathews & Stevens, of Somersworth (S. F. Stevens, of Somersworth, orally), for plaintiff.

Hughes & Doe, of Dover (Robt. Doe, of

Dover, orally), for defendant.

PARSONS, C. J. The plaintiff's exclamation as he was getting up from the ground where he had been thrown by the collision was near enough in point of time to form a part of the transaction and authorize its admission. St. Laurent v. Railway, 77 N. H. 460. 462, 92 Atl. 959, and cases cited. Whether what was said bad any material bearing upon the issues in controversy, and whether, if the remark was clearly immaterial so as to have no bearing either way, it was so prejudicial that its admission should destroy the verdict, are questions as to which the record gives no information. As the record does not disclose error in the admission of the evidence, the exception is overruled. Janvrin v. Janvrin, 58 N. H. 144.

Subject to exception, the jury were not permitted to consider the fact that the local lighting company had not turned on the street light near the place of accident as tending to show it was still so light that the headlight on the car could not have the blinding effect the plaintiff ascribed to it; the court stating, as the defendants interpret the instructions, that this would involve a collateral issue as to the reasonableness of the operations of electric light companies and their practice, which could not properly be investigated in this case. The defendants concede that upon this view the evidence was properly excluded. They contend, however, that this issue was not involved, but that the evidence offered was direct evidence bearing upon the amount of light at the time of the accident, because the evidence was of a practice not to turn on the lights so long as four electric light and telephone poles could be distinguished at a distance of 600 feet. They contend this was relevant as experimental evidence, but concede that a finding excluding the evidence on the ground of remoteness in the view in which they present it would not be open to exception. Cook v. New Durham, 64 N. H. 419, 13 Atl. 650; Bailey Lumber Co. v. Railroad, 78 N. H. 94, 97 Atl. 555. The contention is that the court has from a misconception of the purpose of the evidence failed to pass on the question of fact involved as to the value of their experimental evidence, and that therefore the verdict must he set aside.

The question was of the amount of light between 7:45 and 7:55 on this evening. Evidence from an observer would have been direct and substantial if the observation were made under circumstances sufficiently similar to render the experimental observation of value. Whether the circumstances were sufficiently identical would involve the question of remoteness which the defendants concede might be decided against them. But before occasion arises to decide the...