Nawn v. Boston & M. R. R

• Decision Date: 02 June 1914
• Citation: 77 N.H. 299,91 A. 181
• Parties: NAWN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

91 A. 181

77 N.H. 299

NAWN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 2, 1914.

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

Case by Thomas Nawn, administrator, against the Boston & Maine Railroad, for negligence resulting in the death of William Powell, the plaintiff's intestate. Transferred from the superior court on defendant's exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor and to the admission of certain evidence. Exceptions overruled.

Powell was employed by the defendants. On the morning of his injury he was at work carrying boiler flues across the track at the defendants' storehouse in Concord, and was struck by a derrick car which backed down upon him. The plaintiff offered in evidence a declaration by Powell with respect to the cause of his injury. There was evidence that he was unconscious from the time he was struck until the declaration was made. The court admitted the declaration subject to the defendants' exception, and reserved the discretion of the court whether the evidence warranted the finding that the declaration was near enough in point of time, considering the mental condition of Powell, to be properly admitted. Subject to the defendants' exception, a witness who was not present at the time of the accident was permitted to testify that on one or more occasions before the last Powell looked up the track before picking up a flue for the purpose of carrying it across.

John M. Stark and Martin & Howe, all of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, for defendants.

PARSONS, C. J. 1. There was no error of law in the conclusion of the trial court that under the circumstances the declaration offered was so connected with the fact of injury as to be admissible. Dorr v. Railway, 76 N. H. 16A, 80 Atl. 336; Robinson v. Stahl, 74 N. H. 310, 67 Atl. 577.

"When a person receives a sudden injury, it is natural for him, if in the possession of his faculties, to state at once how it happened. * * * This view of the common experience of mankind shows that, if the declaration has that character, it possesses an important element of reliability and significance which is foreign to narrative remarks made so long after the event as to derive directly no probative force from it" Murray v. Railroad, 72 N. H. 32, 37, 38, 54 Atl. 289, 292 (61 L. R. A. 495, 101 Am. St. Rep. 660).

Whether the declarations offered are spontaneous, the result of the transaction, or are made after an opportunity for reflection—whether their weight as evidence is found in the circumstances under which they were made, or in the credibility of the declarant—are considerations which govern the admissibility of evidence of this character. Murray v. Railroad, supra, and cases cited, 72 N. H. 37, 54 Atl. 289, 61 L. R. A. 495, 101 Am. St. Rep. 660; 3 Wig. Ev., §§ 1747, 1748. If, as the evidence tended to show the declaration was made with the declarant's first consciousness after the accident, it could be found to result spontaneously from the injury, and to be a part of what took place so far as the declarant was concerned, and not to have been the result of reflection and consideration by him. So made the declaration was admissible.

Whether the declarant was or was not unconscious, as the evidence tended to prove, is a question of fact to be decided by the court in ruling upon the admissibility of the evidence.

"When the determination of the competency of a proposed piece of evidence involves a preliminary decision of any questions of fact by the presiding judge, his decision in such matters of fact is final, and not subject to exception." Hurlburt v. Bellows, 50 N. II. 105, 115, 116.

In this case, decided in 1870, comment is made upon the fact that the presiding judge reserved no question of fact, or of discretion for the consideration of the law court. In the present case, the justice of the superior court presiding at the trial reserved "the discretion of the court whether the evidence warranted the finding that the declaration was near enough in time, considering the mental condition of the deceased, to be properly admitted." If this reservation was intended merely to present the question whether the unconsciousness of the declarant from the time of the accident to the time of the declaration was a fact competent for consideration upon the question of remoteness, and whether upon the evidence it could be found the declaration was not too remote, the reservation presents questions of law which have been considered.

"Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland, 52 N. H. 401, 408, 13 Am. Rep. 55; Bundy v. Hyde, 50 N. H. 116, 120; Jaques v. Chandler, 73 N. H. 376, 62 Atl. 713.

In Glover v. Baker, 76 N. H. 261, 81 Atl. 1081, it was held that the justices of the superior court might reserve and transfer to this court for determination questions of law arising before them, without prior decision in that court. The question now appears to be presented whether they may send to this court for revision their conclusions upon matters of fact which are questions of law only because passed upon by the court and not by the jury.

In the case (Bundy v. Hyde, cited above) in which the definition of "discretion" was formulated, it was said:

"It is quite proper at any time, and certainly expedient, in a case of considerable doubt and difficulty, for the presiding justice to reserve the question of discretion for the revision of the whole court."

Since that time very many cases have been decided in which it has been held that matters arising in the conduct of the trial term, in which the question is what ought to be done, what does Justice require in the particular instance, are questions of fact determinable at the trial term, not open to exception. The cases are very numerous. See Jaques v. Chandler, 73 N. H. 376, 381, 62 Atl. 713; 66 N. H. 683; 67 N. H. 616; 68 N. H. 625; 69 N. H. 688; 70 N. H. 660; 71 N. H. 638; 72 N. H. 626; 73 N. H. 645; 74 N. H. 621; 75 N. H. 643; 76 N. H. 632.

In many cases, in ruling that no question was presented by an exception to such findings, it has been remarked that no question of discretion has been reserved. These expressions tend to show an understanding that the finding of fact involved in determining a motion for a new trial, limiting costs, permitting leading questions, excluding evidence for remoteness, and the like, might be reserved and transferred to the law court, but the jurisdiction does not appear to have been recently examined with particular reference to this class of questions. In Kent v. Hutchins, 50 N. H. 92, 94, decided in July, 1870, it is said:

"In matters of discretion, no exception lies to the ruling as matter of right. But in this case the court reserved the question as to the proper exercise of the discretion, and our opinion is that the discretion was properly and wisely exercised."

In Paul v. Reed, 52 N. H. 136, 138, decided in June, 1872, the question was when the title passed upon a sale of chattels. The court say:

"This is a question of fact, but it is submitted to the court for decision. Ordinarily it should be passed upon at the trial term; but where the question is a mixed one of law and fact, as it is here, it may not be irregular, if the judge thinks it best, to reserve the entire question for the whole court."

The court then proceeds to dispose of the case upon the assumption that questions both of law and fact are reserved. If, as this case tends to show, it was understood, as the court was organized in 1872, that the court at the law terms had jurisdiction of questions of fact which might be pending at the trial terms, that view was entirely abandoned under the later acts, which declared the jurisdiction to be "of questions of law arising at a trial term, reserved or assigned for decision." P. S., c. 204, § 3.

In Metcalf v. Weed, 66 N. H. 176, 19 Atl. 1091, the question was whether a search warrant sufficiently described the place to be searched. It was said that a description which identifies with reasonable certainty the place or places to be searched was legally sufficient. All the facts were found, and it was plainly the intent of the reservation to transfer to the law term the determination of the sufficiency of the description. But it was said to be a question of fact whether the description in the warrant designated the place to be searched with reasonable certainty.

"A question of fact is not ordinarily determined at the law term, however, strong or conclusive upon one side or the other the evidence recited in the case may seem to be, and though all the evidence relating to it is reported. Jones v. Aqueduct, 62 N. H. 488. There the reserved case contained an express finding (omitted as immaterial in the reported case) that 'herein are stated all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or not a reasonable use.'"

Either because of a change in the statute or in judicial interpretation, it is clear it was not understood in 1901 that the court at the law term had the jurisdiction to determine questions of fact, which was exercised in Paul v. Reed, supra. It is to be remembered that prior to 1901 the individual judges who held the trial terms sat together as the law court. While trial terms might generally be held by a single justice (P. S., c. 207, § 1), there was no limitation to that number. In capital cases two were required (P. S., c. 254, § 2), while in cases of great importance more, or all of the court, sat together as trial judges. Attorney General v. Taggart, a case in which all the...