Olney v. Boston & M. R. R.

• Decision Date: 01 November 1904
• Citation: Olney v. Boston & M. R. R., 73 N.H. 85, 59 A. 387 (N.H. 1904)
• Parties: OLNEY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

59 A. 387

73 N.H. 85

OLNEY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

Nov. 1, 1904.

Transferred from Superior Court; Stone, Judge.

Action by Austin G. Olney against the Boston & Maine Railroad.Verdict for plaintiff, and case transferred on defendants' exceptions.Exceptions to refusal to order a nonsuit for the defendants overruled, and exceptions to the course pursued by counsel in argument sustained.

The case is the same as that reported in 71 N. H. 427, 52 Atl. 1097, and the evidence presented by the plaintiff was substantially that submitted at the former trial.The defendants' motions for a nonsuit that a verdict be directed in their favor, and that the verdict of the jury be set aside, were denied, subject to exception.

The plaintiff was injured in an attempt to repair a defective arm-hole cover while the locomotive upon which he was employed was in motion.His evidence tended to show that he reported the defect to Sargent, the defendants' foreman, on Saturday, was told that it should be remedied before another trip, and, relying upon that promise, started out on Monday without making an examination to ascertain whether the repairs had been made.The defendants' rules required engineers to inspect their locomotives before each trip, and this the plaintiff customarily did at the close of his day's work.

In his closing argument the plaintiff's counsel spoke as follows, the words in brackets being an extract from the opinion of the court in Olney v. Railroad, 71 N. H. 427, 433, 52 Atl. 1097, 1100: "He reported the only defect he found in the engine to the proper man, and started out Monday morning relying upon that promise; and, as a matter of law, if he had a right to rely upon that promise—if he was not guilty of negligence in so doing—why, then, he is entitled to recover.It is for you to say.He had a right to rely upon that promise, and, if he did rely upon it, you have a right to say whether he did all that was expected of him, because that is the law in the state of New Hampshire.[It is urged that the plaintiff was in fault for not ascertaining by inspection, Immediately before starting, that the promised repair had not been made.It was the plaintiff's duty, under the rules, to inspect the locomotive; but he is not, as a matter of law, at fault for performing such duty at the close of the previous day's work instead of immediately before starting out.One object of the inspection duty resting on the plaintiff was to discover defects arising in use.Inspection at the close of a trip would give an opportunity for minor repairs before the next trip.This would be a reason why the time chosen might be found appropriate.The rule relied upon by the defendants must be given a reasonable construction and application.It cannot be construed to render the defendants' employés insurers of the proper condition of all appliances used by them, or to relieve the defendants of liability for the breach of their masters' duty.It may properly be assumed that Olney's inspection of the engine disclosed that it was in proper condition in all respects except the arm-hole cover, and that between the time of his inspection and his next use of the engine no new defect arose; for there is no suggestion of any defect as a cause of the injury, discoverable Monday morning, which was not equally discoverable Saturday evening.The evidence tended to show that Olney inspected the engine, as required by the rule, and discovered that it was not in proper condition for the service required.It was not his duty to make the necessary repair.He reported the defect to the proper person representing the defendants.As the employé had given notice of the defect to the proper officer whose duty it was to make the repairs, and the impression had been conveyed to him that these would be made, he had the right to assume that they had been made, and to act upon that assumption.]The last sentences are quotations from the law of New Hampshire."An exception was taken, and counsel continued: "That statement is a part of my argument, and is taken from the Supreme Court of the state of New Hampshire, because they are the ones who decide what is the law."Counsel for the defendants subsequently entered a formal exception to the reading of the foregoing extract coupled with the intimation that it was the law laid down by the Supreme Court in the same or a similar ease, and the plaintiff's counsel thereupon addressed the jury as follows: "I ask you to disregard anything that I may have said, or you may have understood that I said, in regard to anything I said to you being a quotation from any law of the Supreme Court in any case.I wish you to consider that what I said about the law was my understanding and my view of the law—what I understood it to be—and I do not want you to give any credit to any statement that I might have made, or you may think I have made, that what I said to you was taken from any opinion of the Supreme Court.It was merely my view of the law."

Burnham, Brown, Jones & Warren, for plaintiff.

Oliver E. Branch and William H. Sawyer, for defendants.

PARSONS, C. J.The portion of the opinion of the court in this case(71 N. H. 427, 433, 52 Atl. 1097) which counsel for the plaintiff read to the jury in the course of his argument was a discussion of the question whether, upon the facts then presented, the plaintiff was, as matter of law, guilty of negligence barring his recovery, because of his failure to reinspect the engine before starting on his trip Monday morning.The case was then before the court upon exception to the order directing a verdict for the defendants.In consideration of the questions of law so presented, all inferences of fact which might be drawn from the evidence were treated, for the purposes of the discussion, as found in the plaintiff's favor.The court did not attempt to decide what conclusions ought to be drawn from the evidence, and the language of the court, used with reference merely to what inferences might be drawn, has no application upon that question.

It is not necessary to cite authority in this jurisdiction to the proposition that counsel may not in their argument introduce into the case, for the purpose of influencing the jurors, evidentiary matter which cannot be, or has not been, proved.The question before the jury upon this branch of the case was whether Olney was in fact in fault for not re-examining the engine.The question of. law whether there was any evidence upon which the fact might be found in his favor was not before the jury or before the trial court.There was no occasion to argue it to the jury, because they could not decide it; nor before the court, because the presiding justice had already decided the question discussed by the Supreme Court in the plaintiff's favor, by denying the defendants' motions for a nonsuit and a verdict.The effect of reading the extract must have been to mislead and prejudice the jury in favor of the plaintiff, by inducing them to believe that the Supreme Court had expressed an opinion favorable to the plaintiff's contentions.The opinion of the Supreme Court on this question, as matter of fact, was incompetent upon the issue before the jury, if that court had held or expressed any opinion.Their opinion, as matter of law, was immaterial so far as the jury were concerned.The court had decided, in the opinion referred to, that upon the evidence presented at the former trial the case should have been submitted to the jury.At this trial, upon facts understood to be substantially the same, the superior court, in compliance with the opinion of the Supreme Court, had submitted the case to the jury.The plaintiff in the second trial had the full benefit, therefore, of the prior decision in his favor.But as the matter was presented in argument, it is extremely probable the jury understood that the opinion of the court related to the question before them.If it was not intended that they should so understand, the object in reading the extract is not readily perceived.But the actual purpose of counsel may not be material.If what was done was deliberately and Intentionally undertaken for the purpose of misleading the jury, the result would be no more prejudicial than if it was done in the supposed exercise of a legal right.

The error was not cured by the careful and painstaking methods of the presiding judge in submitting the case to the jury.They were properly, carefully, and explicitly told that it was for them to decide whether the plaintiff exercised ordinary care in starting out without reinspection Monday morning.But they were...