Niemi v. Boston & Maine R. R.
| Decision Date | 06 November 1934 |
| Parties | NIEMI v. BOSTON & MAINE R. R. (three cases). ROY v. SAME. |
| Court | New Hampshire Supreme Court |
On motion for rehearing.
Former result affirmed.
For former opinion, see 173 A. 361.
After the foregoing opinion was filed, the motion of the plaintiffs in the first three actions for a rehearing was granted upon the issue of the effect of contributory fault.
Murchie, Murchie & Blandin, of Concord, and Everett J. Calloway, of Dover, and Alexander Murchie, of Concord, for plaintiffs.
Hughes & Burns and S. M. Burns, all of Dover, for defendant.
The motions for directed verdicts at the trial, being general, raised the issue of the right to them either by reason of an insufficiency of evidence for the plaintiffs or of conclusive proof of a good defense. Williams v. Duston, 79 N. H. 490, 491, 111 A. 690; Dwyer v. Mut. Life Ins. Company, 72 N. H. 572, 576, 58 A. 502. Neither the course of the trial nor failure to except to the charge affected the standing of the motions. If they had merit, submission of the cases to the jury on any ground was error. The exceptions to the denial of the motions saved for transfer to this court the right to a determination of the correctness of the denial with no limitations of consideration. Not one of the cases cited by the plaintiffs holds to the contrary.
The plaintiffs' chief argument is that the negligence of the driver of the automobile should not bar its owner from recovery as a statutory beneficiary.
The driver's conduct was chargeable to the owner. What he did she did. If she did not in fact direct his operation of the car, yet he was under her direction. He was her agent and his mind and hands were the same as her own under the rule of responsibility for an agent's conduct. Assuming that she owed her children the duty of care towards them (see Dunlap v. Dunlap, 84 N. H. 352. 150 A. 905, 71 A. L. R, 1055), she violated the duty and was liable to them for her agent's wrong as though it were committed by her personally. It was her wrong in every legal sense as much as the driver's. If living, the children would have a choice between suing either parent. Their causes of action surviving them remained alternative. Those against the mother were as good as those against the father. The statutory assignment of the causes could therefore place her in no better position in respect to them than that in which he was placed. If liability was lacking because of the relation of parent and child, yet there was contributory fault, in the sense of careless conduct towards the children, which was chargeable equally to either parent. The principle that the mother should not enjoy the benefit of an injury to which her carelessness contributed extends to conduct of her agent as well as her own. Page v. Hodge, 63 N. H. 610, 4 A. 805; Dimock v. Lussier, 86 N. H. 54, 56, 163 A. 500; 20 R. C. L. 148; Sherm. & Red., Neg. (6th Ed.) § 65. Because of...
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...Cogswell v. Boston & M. Railroad, 78 N.H. 379, 386, 101 A. 145; Niemi v. Boston & M. Railroad, 87 N.H. 1, 7, 173 A. 361, 364, 175 A. 245. 'The statute, first permitting an action for personal injury to be brought after the injured person's death, then operates to transfer from the latter's ......
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...negligent. Sarkise v. Boston, etc., Railroad, 88 N.H. 178, 180, 186 A. 332; Niemi v. Boston, etc., Railroad, 87 N.H. 1, 3, 173 A. 361, 175 A. 245; Fraser v. Berlin St. Railway, 84 N.H. 107, 146 A. 714. And if he had lived and testified that he looked carefully and did not see the defendant'......
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