Taylor v. Grand Trunk Ry. Co.
| Decision Date | 01 January 1869 |
| Citation | 48 N.H. 304 |
| Parties | EMMA TAYLOR v. GRAND TRUNK RAILWAY COMPANY. |
| Court | New Hampshire Supreme Court |
After the entry of a suit by a minor by her next friend, she died and her administrator was admitted as the party to prosecute the suit; it was held that the wife of such next friend was a competent witness for the plaintiff:
Held also that it was too late to object to her competency after the direct examination in her deposition had been read, the counsel being aware of her situation at the commencement.
The admission of the representations of a sick person should be confined to such expressions as furnish evidence of the present condition of the patient, excluding carefully every thing in the nature of a narrative of what is past.
The statement that a person was lamer in the morning than the day before is not matter of opinion but a statement of a fact, and not objectionable.
The admissions of the father of the person alleged to be injured and bringing suit for it, made before her death, are not admissible against her administrator, unless it be shown that the father is the real party in interest for whose benefit the suit is prosecuted.
If this be shown the admissions would be competent, although when they were made the father had no interest.
But the mere fact that the estate of the daughter would descend to the father subject to the claims upon it, would not make him the party to the suit so as to render his admissions competent.
The testimony of a physician that injuries from railroad accidents were more severe than from other causes though bearing the same external appearance, is admissible although his knowledge is derived from study alone.
On the cross-examination of a witness offered by the railroad, and who had charge of the section where the alleged injury happened from a defective rail, it is proper to ask him if he was short of iron at the time.
Common carriers of passengers are bound to the exercise of the utmost care and diligence of very cautious persons, and are responsible for any, even the smallest, negligence.
The standard of care and diligence required of a railroad in carrying passengers does not depend upon its pecuniary condition or the amount of its revenues, but it is bound to provide a track, rolling stock, and all other agencies suited to the nature and extent of the business it assumes to do.
A direction to the jury that a railroad must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business, is erroneous, and calculated to mislead the jury.
When an injury upon a railroad is caused by the gross negligence of the corporation, the jury may, if they think proper, award exemplary damages.
CASE to recover for injuries alleged to have been sustained by Emma Taylor, in Sept. 1806, while travelling on defendants' road. In the writ, dated Oct. 3d, 1866, plaintiff was described as a minor suing by A. W. Pope, her next friend. At April Term, 1867, the death of plaintiff was suggested, and John Bailey, 2d, her administrator, was admitted to prosecute the action.
I. Plaintiff offered the deposition of Elizabeth A. Pope, taken after the death of Emma Taylor. Defendants had appeared by counsel at the caption, and had raised no objection to the competency of the witness. No objection was raised at the trial until the plaintiff had read to the jury, the direct examination of deponent, when defendants, at the reading of the first question on cross-examination, objected to the competency of the deponent, because she was the wife of A. W. Pope. The objection was overruled, subject to defendants' exception.
II. The following testimony relative to Emma Taylor's condition after the injuries were alleged to have been received, was admitted, subject to defendants' exception. Deposition of Abby C. Jennison—answer to interrogatory 5: (This was on the night after the accident.) Answer to interrogatory 20: "She did not seem to be excited, frightened." (This was within a few hours after the accident.) Deposition of Mrs. Unity P. Crane who slept with Emma Taylor, the night after the accident. Interrogatory 18: "How was her lameness in the morning as compared with the day before, from what you saw and observed in her motions, and your examination made?" Answer—" She was lamer in the morning."
III. It appeared that Emma Taylor died under twenty-one years of age, unmarried, and without issue. Defendants' offered to prove declaration made after the accident, and before the death of Emma, by her father, who is still living. The evidence was excluded, subject to defendants' exception.
IV. Dr. Harris testified in substance, subject to defendants' objection, that injuries received in railroad accidents were more severe than injuries received from other causes, and bearing the same external appearance. Dr. Harris had previously testified that he was a practising physician, that he had not attended persons injured on railroads, and that his knowledge on the subject was derived from reading. The objection that Dr. H. was not an expert on the subject was not specifically taken. If it had been, the court would probably have ruled that he was an expert. Defendants' had previously objected to testimony on the subject from another physician who had had practical experience in attending on persons injured on railroads.
V. It was admitted that the accident was caused by the breaking of a rail. Subject to defendants' exception, plaintiff was allowed, on cross-examination, to ask the foreman of the five mile section where the accident occurred, "Were you short of iron at the time of the accident?" Answer to the above and other questions: "I had iron to repair that place—a whole old rail, but a good one—shouldn't have put in a new one if I had had it—think I hadn't any new rails on hand at that time, not certain."
VI. The jury were instructed as to defendants' liability, in substance as follows: The burden of proof is on the plaintiff to show that the accident occurred under such circumstances that the defendants were liable for the consequences; defendants are not insurers, and are not liable if they have been in no fault, but they are liable for the smallest negligence; they must provide a good track, and if there be the least failure in this, they are answerable for any injury that may happen in consequence. Defendants are bound to use the highest degree of care which a reasonable man would use; this does not mean the utmost degree of care which the human mind is capable of imagining, or in other words that care enough must be taken to render the passengers perfectly safe; such a rule would require so great an expenditure of money, and the employment of so many hands. Defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. The law does not require such particular precaution as it is apparent after the accident might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident and without knowledge that it was about to occur. Defendants must use the highest degree of practicable care and diligence that is consistent with the mode of transportation adopted. They are not obliged to use every possible preventive that the highest scientific skill might have suggested. It is said that they must use the best precautions in known practical use to secure safety, the most approved modes of construction and machinery in known use in the business; but this doctrine must be taken with the qualification, that they are not obliged to introduce improvements if the expense of introducing them is much greater in proportion, than the increase of safety thereby attained.
Defendants excepted in these words:—"To the charge of the court as to the liability of common carriers of passengers by railroad."
VII. Evidence was introduced by plaintiff, tending to show that the track was "very much curved" at the place of the accident; that the rail which broke was on the inside of the curve, next the Ammonoosue river, and about fifteen or twenty feet from the river; that this rail appeared very much worn and battered or broomed, from one to two feet from the end; that it was a "U" rail; that some two feet of the rail broke off, and that two passenger cars went off the track and part way done the bank, being almost bottom side up when they rested; that the train was going at the rate of not more than twenty miles an hour when the accident occurred.
Defendants introduced evidence tending to show that the breakage was occasioned by a hidden defect in the rail, which they were not in fault for not detecting; but although several employees of the defendants, including the chief engineer of that portion of the road were on the spot immediately after the accident and saw the rail, (and the defendants sent an eminent physician from Montreal to look after the persons injured,) it did not appear that defendants preserved the rail, and the rail was not produced by them at the trial.
The jury were instructed, that if they found that the accident was caused by the gross negligence of defendants, they might, if they chose, give exemplary damages, but that they were not bound to do so. Part of the decision in Hopkins v. At. & St. L. R. R., 36 N. H., 9, beginning on the third line from the bottom of page 17th, and ending on the eleventh line from the top of page 19th, was read to the jury, (omitting authorities,) to be considered by them only as a statement of reasons which had induced the court to allow juries to give exemplary damages in cases of gross negligence.
Defendants except...
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