Niemi v. Boston & M. R. R.

• Decision Date: 05 June 1934
• Citation: 173 A. 361
• Court: New Hampshire Supreme Court
• Parties: NIEMI v. BOSTON & M. R. R. (three cases). ROY v. SAME.

173 A. 361

NIEMI

v. BOSTON & M. R. R. (three cases).

ROY

v. SAME.

Supreme Court of New Hampshire. Rockingham.

June 5, 1934.

Transferred from Superior Court, Rockingham County; Scammon, Judge.

Separate actions by Henry A. Niemi, administrator of the estate of George L. Niemi, by Henry A. Niemi, administrator of the estate of Rudolph H. Niemi, by Henry A. Niemi, administrator of Ellen L. Niemi and by Aime Roy, administrator of the estate of Agnes Roy, against the Boston & Maine Railroad, which were tried together. Transferred on defendant's exceptions to denial of motions for directed verdicts, to evidence, to argument, and in connection with the charge and instructions.

Judgments for defendant in the actions by Niemi, administrator, and new trial in the action by Roy, administrator.

Actions for causing the deaths of the plaintiffs' intestates. Trial by jury, and verdicts for the plaintiffs. The deaths were the outcome of a collision at a highway crossing in Newmarket between a train of the defendant and an automobile in which the intestates were passengers.

With the actions there were tried two others brought by the driver of the car and by its owner who was riding in it at the time. In their actions verdicts for the defendant were returned, upon each of which judgment has been rendered.

The defendant excepted to the denial of its motions for directed verdicts, to evidence, to argument, and in connection with the charge and instructions. The opinion states the material facts.

Everett J. Galloway, of Dover, and Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for plaintiffs.

Hughes & Burns, of Dover (Stanley M. Burns, of Dover, orally), for defendant.

ALLEN, Justice.

The driver's negligence is a required finding. As the plaintiffs' car proceeded towards the crossing, the train approached it from the left. When about three rods from the nearest rail over the crossing the driver looked to the left. The train was then 300 to 350 feet from the crossing. The evidence that the train was clearly within range of his sight appears definitely conclusive. The jury took a view, and it is assumed that the photographs in evidence show the situation and conditions at the crossing. Their integrity has not been questioned or the statement that they were taken very soon afer the collision. The driver's testimony that the train could not be seen at the point where he looked by reason of intervening obstructions must be rejected as untrue. Collette v. Railroad, 83 N. H. 210, 217, 140 A. 170; Moreau v. Palatine Ins. Company, 84 N. H. 422, 425, 151 A. 817. The obstructions to which he testified of a rail fence and bank at the side of the road were not high enough to shut off a view of the train. His testimony that the fence was buried to its top with snow he modified after being shown the photographs which disproved it. It was broad daylight, and the air was clear. While it is incorrectly stated in the brief for the plaintiffs that the driver stopped the car when he looked, he testified to a speed very close to 6 or 7 miles an hour. He had favorable opportunity to make a reliable observation.

He either saw the train, or took such an inadequate glance in its direction that he did not notice it. Any careful look, would have disclosed it. If he saw the train, his subsequent conduct was careless. The car was under control and could be stopped within 10 feet. He had 4 or 5 seconds in which to stop or turn the car to the right. If he did not see the train, it was because he was careless in the manner he looked for it He looked to see if a train was coming, but used no care to make his look effective. The precaution of looking demanded that some care be used in taking the look. Assuming that he relied upon the crossing signals and the train's whistle to warn him, and that none of these warnings were given, he did not place full reliance upon them. He looked up "to see if a train, if there was any trains coming." It was a habit he had as a driver, and another reason he looked was because the crossing signals were inactive. Taking anticipatory care not to depend altogether upon the expected warnings, he took no care to make his conduct in pursuance of his anticipation of any service and value. Some care was required (Robinson v. Railroad, 85 N. H. 474, 475, 476, 160 A. 473, and cases cited), and his testimony concludes him (Harlow v. Leclair, 82 N. H. 500, 136 A. 128, 50 A. L. R. 973).

The owner's negligence follows from that of the driver, as a matter of law. If she was not directly negligent, her charge-ability for his negligence places her for all legal purposes in the same position as though she herself were the driver. Dimock v. Lussier, 86 N. H. 54, 56, 163 A. 500.

The intestates in three of the actions were their children, and these actions are solely for their benefit "* * * The damages recovered, less the expenses of recovery, shall belong and be distributed" to specified classes of distributees, who here are the parents as the heirs at law. P. L. c. 302, § 14. Although the pain suffered by a decedent in consequence of his injury and the expense to his estate caused by the injury are among the elements for which damages are allowed, recovery therefor is a part of the compensation of the distributees. Davis v. Herbert, 78 N. H. 179, 97 A. 879: Ghilain v. Couture, 84 N. H. 48, 53, 146 A. 395, 65 A. L. R. 533; Cogswell v. Railroad, 68 N. H. 192. 44 A. 293.

It was held in Warren v. Railway, 70 N. H. 352, 47 A. 735, 738, that the distributee's negligence as a cause of the decedent's death was no defense to an action for the joint or concurring negligence of another. The decision rests upon two grounds. One is that the distributee's fault is not imputable to the decedent. This is the well-established rule prevailing here, and no discussion of its merit is invited. The other ground is that the distributee is not a party in interest. This ground seems so doubtful in its validity and the result is so opposed to normal legal principles that there is occasion to reconsider the case in this respect and examine the soundness of the reasoning by which the result is reached. The conclusion of the court was that as between two persons wrongfully causing a death, if one is the sole distributee, he may receive the full recovery from the other, and if there arc innocent distributees, he may share the recovery with them with no account taken of his fault, however great it may be. The common-law policies that one may not have compensation for an injury of which his fault is causal and that contribution or liability between wrongdoers is not to be enforced are held to be replaced in respect to the statute by a contrary legislative policy found to be disclosed only by the description of the action as one of survival and by the procedural provision for its maintenance in the administrator's name.

While the case has been consistently followed since it was decided in 1900, citation of it has been almost uniform in upholding the rule against imputed negligence. See Carney v. Railway, 72 N. H. 364, 368, 57 A. 218; Williams v. Railroad, 82 N. H. 253, 254, 132 A. 682; Doyle v. Lacroix, 85 N. H. 247, 248, 157 A. 75. However, it is given discussion on the point of contributory fault in Strout Farm Agency v. Hosford, 81 N. Hi 507, 508, 128 A. 685, with approval of the ground that a distributee is not a party in interest. His relation to the administrator is considered the same as that of creditors and heirs in an action between the administrator and others.

This position seems seriously questionable, in view of the distributee's rights as declared in Cogswell v. Railroad, 68 N. H. 192, 194, 44 A. 293, and in view of the definition of a party in interest as stated in Carlton v. Patterson, 29 N. H. 580, 587, and in Hunt v. Haven, 52 N. H. 162, 169, cited in Morin V. Travelers' Ins. Company, 85 N. H. 471, 472, 160 A. 482. By the Carlton Case, "the party who really carries on the controversy under a party who has no concern in it, and' is merely a nominal party, or under one who is fully indemnified," is the party in interest. In the Hunt Case, substantially the same test is applied. One is a party in interest who has the right to "control the proceedings." In the Cogswell Case it is held that the distributees, upon indemnifying the administrator, may commence and prosecute the action in his name and engage their own counsel. Their description in the opinion as parties in interest seems undeniably within the definition of such parties given in the Carlton and Hunt Cases.

In Hinman v. Director-General, 79 N. H. 518, 112 A. 382, it was held that an administrator may institute the action at his own instance when it is not shown that there are any distributees. It is to be supported on the ground that he has authority to save the rights of possible distributees, and not on any theory that he has a substantial interest in the maintenance of the action. The case also held that there could be no trial of the action until distributees were found. It may well be that the survival of the cause of action and the statutory arrangement for the action to be brought in the administrator's name imply some fiduciary duty that he take action for the distributees. But it is no more than an imposed agency which they may control. Clearly, they may assume full charge of the action, may settle directly with the defendant, and may disaffirm the administrator's unauthorized institution or prosecution of the action. Having no right to act except in their behalf, he is under their direction. If in some limited respects he is more than a nominal party, it remains that they are "the real parties in interest." In this aspect of control they are in the position of assignees of the cause of action. The. statute, first permitting an action for personal injury to be brought after the injured person's death, then operates to transfer from the...