St. Laurent v. Manchester St. Ry.

• Decision Date: 05 January 1915
• Citation: 77 N.H. 460,92 A. 959
• Parties: ST. LAURENT v. MANCHESTER ST. RY.
• Court: New Hampshire Supreme Court

92 A. 959

77 N.H. 460

ST. LAURENT

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsborough.

Jan. 5, 1915.

Exceptions from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by Alfred St. Laurent against the Manchester Street Railway. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

One question in the case was whether the plaintiff ran into the defendant's car, or the car ran into him. The accident happened on a Sunday forenoon in April, on Somerville street in Manchester. There was evidence that the car was running slowly, that it stopped quickly, and that the plaintiff at once arose from the ground and walked to his home near by. Testimony of a passenger on the car was offered and ruled upon as follows:

"Q. Now was there—you need not answer this just for a moment, I want to ask the question— immediately after the accident took place, was there any expression made by the people in common there, if you heard, without knowing who made it? Court: About the accident? Mr. Warren: Yes. Court: At the time? Mr. Warren: Yes. Court: She may say yes or no. A. Yes. Q. Now, what was it? Mr. Stearns: I object. Court: Wait. Mr. Warren: I believe that is competent. Court: If it is near enough to the time, I haven't any doubt— Mr. Warren: I put it immediately after the accident. Court: I want you to put it as near as you can after the stopping of the car or contact with it. Q. Mrs. Hamilton, you say a common expression was made. When was it made with reference to the stopping of the car? A. When was it made? Q. Yes. A. Why, the car was there, and I was sitting on the car. Court: Was it after it stopped? Q. Was it after the car stopped you heard the common expression? A. Yes, just after it stopped. Court: Where was the boy? Was he gone, of was he there? A. They were carrying him, taking him, before he was taken into the house. Court: I think I will receive it, subject to exception. If you wish to except to it, you may. Mr. Stearns: Exception. Q. What was the expression? A. That he ran into the car."

The plaintiffs counsel did not suggest that the people making the "common expression" were not in a position to know the truth upon the subject, and the court did not understand that such a claim was made. The court found from all the evidence in the case that those who made the expression knew the truth with respect to it; and to this finding the plaintiff excepted after the trial, upon the ground that it was not supported by the evidence.

Henry B. Stearns and Thorp & Abbott, all of Manchester, for plaintiff.

Jones, Warren, Wilson & Manning, of Manchester, for defendant.

PEASLEE, J. The evidence is objected to upon two grounds: (1) That the exclamation was too remote from the transaction in point of time, and (2) that it did not appear that the persons uttering the exclamation were in a position to know the facts. Both of these questions are peculiarly for the trial court. They are questions of fact, and the finding upon them will not be disturbed unless it clearly appears that they were made without evidence. Indeed, it is urged by a high authority upon the subject that the finding of the trial court upon such issues should be final. 3 Wig. Ev. § 1750. It may be that Wigmore's suggestion, that the law court should leave "the application of the principle absolutely to the determination of the trial court," means no more than that the decision of the fact should be so left, still reserving for the consideration of the law court the question whether upon the evidence the conclusion could be reached. This is the rule applied in this jurisdiction as to all questions of fact, or so-called matters of discretion. State v. Wren, 77 N. H. 301, 92 Atl. 170. This court does not determine the question whether spontaneous exclamations shall or shall not be admitted under particular circumstances, except in so far as such result follows from a consideration of the sufficiency of the evidence to warrant the trial court in finding (1) sufficient nearness in point of time to the exciting cause, and (2) knowledge of the declarant. Some evidence to justify the conclusions appearing, the determination of whether they shall be drawn is left "absolutely to the determination of the trial court," as Wigmore suggests. Nawn v. Railroad, 77 N. H. 299, 91 Atl. 181; Davis v. Railroad, 75 N. H. 467, 76 Atl. 170; Dorr v. Railway, 76 N. H. 160, 80 Atl. 366; Robinson v. Stahl, 74 N. H. 310, 67 Atl. 577; Murray v. Railroad, 72 N. H. 32, 54 Atl. 289, 61 L. R....