Murphy v. Boston & M. R. R.

• Decision Date: 26 June 1915
• Parties: MURPHY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

94 A. 967

77 N.H. 573

MURPHY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 26, 1915.

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

Action by Eugene J. Murphy against the Boston & Maine Railroad. Verdict for plaintiff, and defendant excepts. Exception sustained, and verdict set aside.

There was evidence upon which reasonable men could differ as to the issue of the plaintiff's contributory negligence. The court charged the jury that the burden of proving contributory negligence was upon the defendants, in accordance with an act of the Legislature approved April 21, 1915 (Laws 1915, c. 148), and the defendant excepted.

Hollis & Murchie, of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

WALKER, J. After the date of the plaintiff's writ, and before the trial, the Legislature passed an act providing that:

"Hereafter, in all actions of tort for personal injury, contributory negligence on the part of the plaintiff shall be a good defense to the action, and the burden of proving the same shall be upon the defendant." Laws 1915, c. 148, § 1.

The question raised by the exception is whether the act applies to actions pending at the time of its enactment Heretofore it has been incumbent on a plaintiff in a personal injury case to prove due care on his part, or freedom from contributory negligence, by a preponderance of the evidence. It was a burden cast upon him by the common law as administered in this jurisdiction. Wright v. Railroad, 74 N. H. 128, 65 Atl. 687, 8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949. To change this procedure, and to place the burden of proving the plaintiff's negligence or his want of due care upon the defendant, was the evident purpose of the recent statute. It made an important change in the law governing the trial of such actions.

But was it also the intention of the Legislature to make the statute applicable to actions pending when it took effect? Was it to have a retroactive effect to such an extent that it changed the whole theory of a pending trial at the moment of its passage? If it was intended to apply to actions that had then been brought, it would seem to follow that it would govern the course of procedure in actions then on trial. In the absence of any language expressly indicating such a purpose, and in view of the universally recognized principle that legislation is presumed to be prospective, and not retrospective, in its operation, it is difficult to understand how such a result could be reached. Statutes, whether they relate to rights or to methods of procedure, are presumptively intended to operate upon future situations as they may arise. In Dickinson v. Lovell, 36 N. H. 364, it is said:

"In cases where the Legislature have unquestionable power under the Constitution to take away or substantially modify the remedy in a pending suit, it is generally impolitic and unjust to exercise the power. When the plaintiff commences his action, he relies and has reason to rely on the remedy which the existing law gives him in the form of action which he has chosen; and it is an established maxim in the construction of statutes that the lawgiver will not be presumed to intend that a law should in any way affect the remedy in a pending suit, unless the intention is very clearly expressed."

The same reasoning is equally applicable to a defendant with reference to the rules of procedure by which he seeks to establish his defense:

"The general presumption is that the operation of a statute concerning either rights or remedies is intended to be prospective only." Nichols v. Cass, 65 N. H. 212, 214, 23 Atl. 430.

"This doctrine for the interpretation of statutes is applied without regard to the constitutional authority of the Legislature to give them a retroactive effect." Leavitt v. Lovering, 64 N. II. 607, 608, 15 Atl. 414, 415, 1 L. R. A. 58.

Other New Hampshire cases, in which statutes modifying existing remedies have been held not to apply to pending actions, though the language used was broad enough to have that effect, are Colony v. Dublin, 32 N. H. 432; Boston & Maine R. R. v. Cilley, 44 N. H. 578; Atherton v. McQuesten, 46 N. H. 205; Wentworth v. Farmington, 48 N. H. 207; Morrison v. Annis, 48 N. H....