Tucker v. Lowe

• Court: New Hampshire Supreme Court
• Citation: Tucker v. Lowe, 79 N.H. 259, 107 A. 641 (N.H. 1919)
• Decision Date: 28 June 1919
• Parties: TUCKER v. LOWE.
• Writing for the Court: PLUMMER, J.

107 A. 641

TUCKER

v. LOWE.

Supreme Court of New Hampshire. Rockingham.

June 28, 1919.

Exceptions from Superior Court, Rockingham County; Kivel, Judge.

Action by Orrin Tucker against Gertrude Lowe. Plaintiff's motion for judgment on a verdict was denied, and he excepts. Judgment on the verdict.

See, also, 78 N. H. 610, 102 Atl. 376.

Action for personal injuries under chapter 163, Laws 1911, reported 78 N. H. 610, 102 Atl. 376. After the overruling of the defendant's exceptions there reported, the plaintiff's motion for judgment was denied, subject to exception. Upon hearing the court found that the issue whether the defendant failed to instruct the plaintiff as to shutting off the power, upon which it was held there was evidence authorizing the submission of the case to the jury, was not submitted at the trial, but that the plaintiff rested his case upon the claim of negligence in two particulars only—failure to furnish suitable guards, and a defective clutch; that the plaintiff waived the failure to instruct as a ground of liability, and that justice did not require a new trial.

Sleeper & Brown, of Exeter (J. F. Brown, of Exeter, orally), for plaintiff.

Hughes & Doe, of Dover (Robert Doe, of Dover, orally), for defendant.

PLUMMER, J. Upon the record as it stands the exception to the refusal to order judgment on the verdict must be sustained. The plaintiff had a verdict, which the defendant by her motions for a nonsuit and a directed verdict contended the evidence did not authorize. This contention having been transferred to this court by exception to the denial of the motions, the parties were fully heard, and the question of law so presented was decided in favor of the plaintiff and the exceptions overruled, whereby the plaintiff became entitled to judgment on the verdict; no legal objection to the verdict being raised, except the claimed absence of evidence to support it. The plaintiff's motion for judgment in the superior court appears to have been denied upon the ground that the facts found show that the exceptions were or may have been erroneously overruled in the Supreme Court. But the legal soundness of the conclusions of this court is not open, when application is made in the superior court for the appropriate orders to carry them into effect. If it were, nothing would ever be settled; questions decided here could be rcrepeatedly returned to this court at the pleasure of the parties.

The question whether there was evidence for the jury has been decided. A question of law, once decided in a cause, is not re-examined in the same case, except upon a motion for rehearing. Kidd v. Trust Co., 75 N. H. 154, 158, 71 Atl. 878. If the decision rendered was considered erroneous through mistake of law or misapprehension of fact, the defendant's remedy was a motion for rehearing, made within 10 days of the decision. Upon such motion the defendant might have obtained leave to secure an amendment...