Moran v. Dover, S. & R. St. Ry. Co.

• Decision Date: 05 May 1908
• Citation: 74 N.H. 500,69 A. 884
• Parties: MORAN v. DOVER, S. & R. ST. RY. CO.
• Court: New Hampshire Supreme Court

69 A. 884

74 N.H. 500

MORAN

v. DOVER, S. & R. ST. RY. CO.

Supreme Court of New Hampshire. Strafford.

May 5, 1908.

Exceptions from Superior Court, Strafford County; Stone, Judge.

Case for personal injuries by Delia V. Moran against the Dover, Somersworth & Rochester Street Railway Company. There was a verdict for plaintiff, and the cause was transferred from the superior court on exceptions. Overruled.

There was evidence that the plaintiff employed physicians to treat her for the injuries, and of the nature and extent of the treatment, but none as to the value or cost of the services. The defendant's request that the jury be instructed "that upon the evidence there could be no recovery for medical attendance and services of the physicians who treated the plaintiff" was denied, subject to exception.

Kivel & Hughes, for plaintiff. Samuel W. Emery, for defendant.

PEASLEE, J. So far as a fact in issue is one upon which men in general have "a common fund of experience and knowledge," the jury may use this information in making up their minds. 4 Wig. Ev. § 2570. Such knowledge dispenses with the necessity for introducing evidence on the subject. It is also said that "the scope of this doctrine is narrow. It is strictly limited to a few matters of elemental experience in human nature, commercial affairs, and every-day life." Id.

It is apparent that the rule laid down cannot be applied with mathematical exactness. Upon the particular question involved in this case the courts are divided. A considerable number hold with more or less strictness to the theory that the value of the services of a physician must be shown by evidence. Brown v. White, 202 Pa. 297, 51 Atl. 962, 58 L. R. A. 321; Hobbs v. Marion, 123 Iowa, 726, 99 N. W. 577; Nelson v. Railway, 113 Mo. App. 659, 88 S. W. 781; Houston, etc., R. R. v. Garcia (Tex. Civ. App.) 90 S. W. 713. Compare with these cases the following: Kelley v. Mayberry, 154 Pa. 440, 26 Atl. 595 (jurors allowed to estimate the value of a wife's services to her husband); Northern, etc., Co. v. Mullins (Tex. Civ. App.) 99 S. W. 433 (jurors allowed to take into consideration the fact that future medical attendance would probably be necessary); Murray v. Railway, 101 Mo. 236, 13 S. W. 817, 20 Am. St. Rep. 601 (jurors allowed to find the value of the services of a nurse, the measure being "their own knowledge and experience"). In other jurisdictions the rule is that jurors "have some knowledge in common with men in general as to the charges ordinarily made by physicians for attendance and services," and that they may avail themselves of...