W. v. Boston & M. R. R.

• Decision Date: 07 April 1925
• Citation: 129 A. 768
• Parties: WEST v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

129 A. 768

WEST

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

April 7, 1925.

On Rehearing.

Exceptions from Superior Court, Merrimack County; Branch, Judge.

Action by George M. West against the Boston & Maine Railroad, prosecuted after plaintiff's death by his administratrix, Elizabeth S. West. On defendant's exception alter verdict for plaintiff. New trial granted.

Robert W. Upton and Joseph C. Donovan, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

PEASLEE, G. J. This is a suit for negligence brought by an injured employee, George M. West, in his lifetime, and prosecuted after his death by his administratrix. The questions presented relate to the submission of a certain issue as to fault of the defendant to the jury, to the rule of damages given and to instructions as to the burden of proof upon the issue of the fault of the plaintiff's decedent.

I. One ground of complaint was that the defendant maintained an improper staging. The locus was the defendant's freight car repair shop in Concord. A track ran through the building, and on either side there was a staging for the use of the workmen. The staging consisted of a single line of planks, resting upon bracketts, and overlaying one another at each bracket. The brackets could be moved up and down, and the planks could be moved laterally, so as to accommodate the staging to the particular work in hand. Where the planks joined, they were secured from falling by a chain passing around a part of the bracket, and with one end attached to either plank. The chain had sufficient slack to permit the top plank to move sideways upon the lower one, thereby making it likely that the top one would tip if weight were applied on the overhanging side. At the ends of the staging, the single plank end rested upon one of a series of rods like rungs of a ladder. The plank was here secured by either one or two angle irons, attached to the bottom of the plank and projecting downwards behind the rod. If the plank was tipped sufficiently, the angle irons would clear the rod and afford no protection against the plank being pulled off the rod. The accident was caused by a workman jumping upon the staging (as was the custom), tipping an overhanging plank, freeing the end in the manner above described, and co using the plank to fall upon West.

It must be apparent to the ordinary person that a better security against the fall of the plank could well have been adopted. Whether it ought to have been was a question for the jury. The staging was not a temporary affair, but a part of the permanent arrangement of the work place. The chance of injury from a falling; plank appears to have been considerable. The defendant's conduct in carefully securing the planks at all other points but the extreme ends is of itself evidence of the need of such precaution.

Whether the use of the angle irons was or was not all that the ordinary man would have done was clearly for the jury to determine. While expert testimony, or evidence as to usage, could undoubtedly be received upon the subject, if the presiding justice deemed it to be useful (Olgiati v. New England Co., 80 N. H. 399, 117 A. 735; Laird v. Railroad, SO N. H. 379, 117 A. 591; Kelsea v. Stratford, 80 N. H. 151, 118 A. 9; Gardner v. Commercial Mach. Co., 79 N. H. 454, 111 A. 317; State v. Killeen, 79 N. H. 201, 202, 107 A. 601 and cases cited), yet such proof is not required when the question relates to a matter of common experience, observation, or knowledge (Moran v. Railway, 74 N. H. 501, 69 A. 884, 19 L. R. A. [N. S.] 920, 124 Am. St. Rep. 994; State v. York, 74 N. H. 125, 65 A. 685, 13 Ann. Cas. 116; Wheeler v. Contoocook Mills, 77 N. H. 551. 94 A. 265; Casey v. Jones Co., 79 N. H. 42, 104 A. 454).

In this situation, the question which has been argued as to the sufficiency of the testimony of expert witnesses, or specialists, to prove fault in this respect, is immaterial. The case was one which could be sent to the jury without the introduction of such evidence. Submission of the issue does not depend upon the production of instructional proof. There was sufficient evidence of fault in the construction and maintenance of the staging, and the exception to the submission of the issue to the jury is overruled.

II. The defendant requested instructions to the effect that no recovery could be had for loss of earning capacity after the death of the injured party. The requests were denied and the jury were instructed to consider the probable duration of his life but for the injury, and his probable earning capacity for such period.

The question thus presented involves a consideration of the history of the common law and statutes of the state as related to any recovery either for death, or for damages suffered because of death, or for damage accruing after death. The defendant relies upon the application of the common-law rule, as generally declared, that the law will not undertake to value human life. "Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a freeman cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than the Roman Digest, reproduced therein, and echoed by the courts of all countries from then till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains, and refusing them for a life-long sorrow and the pecuniary losses consequent on the death of one from whom was derived support, comfort, and even the necessary stays of life." 8 R. C. L 719.

Its adoption into the common law was plainly in denial of the ancient rules of that system as to were-gilds, maegbotes and deodands. 2 Pol. & M. Hist. Eng. Law, 450, 459; Crabb's Eng. Law, 36. It was announced by Lord Ellenborough in a nisi prius decision in 1808 (Baker v. Bolton, 1 Camp. 493), and was apparently accepted without further consideration until the passage of Lord Campbell's act, in 1846, rendered it inoperative there as to most cases. Its application to a suit by a parent for loss of a child's services was upheld in 1873, by a divided court. Osborn v. Gillett, L. R. 8 Ex. 88.

In this country it seems to have been generally conceded that there is no sufficient reason for the establishment or the continuance of such a doctrine. It has been constantly questioned, but usually adhered to. The matter was first considered in this state in Wyatt v. Williams, 43 N. H. 102. The opinion states the rule as the law, but the case was decided upon other grounds. That was a suit by a wife to recover her loss incident to an injury to her husband. As it appeared that he lived some time after the injury, it was conceded that the rule stated would not dispose of the case, and the decision against the plaintiff was put upon the ground that a wife had no right to a recovery for injuries to her husband.

There is no later decision resting upon the dicta found in Wyatt v. Williams, supra. It is true that it was recited with approval in Chaloux v. International Paper Co., 75 N. H. 281, 73 A. 301, 139 Am. St. Rep. 690, but "other substantial reasons" were found for denying a recovery in that case. On the other hand, there has been frequent judicial criticism of the theory. In State v. Railroad, 52 N. H. 528, 548, attention is called to the dissenting opinion of Baron Bramwell in Osborn v. Gillett, L. R. 84, 88, and reference is made to the "supposed objection to such recovery."

"Under this system, the malicious destroyer of human life is liable to indictment and death, but not to a civil action, for ancient reasons difficult to be now discovered, possibly of theological origin—Exodus, xxi, 12, 18, 19, 22, 23; Leviticus, xxiv, 17, 18; Numbers, xxxv, 31—possibly derived from the difference between human life which no man owns, and other life which may be the subject of property." Doe, J., Aldrich v. Wright, 53 N. H. 398, 418, 16 Am. Rep. 339.

In Bedore v. Newton, o4 N. H. 117, 119, Ladd, J., used the following language in speaking of the reasons assigned for the rule:

"I must say, however, that I have never been able to comprehend their force or admit their soundness. That one person may have a direct pecuniary interest in the life of another, and so suffer a direct pecuniary damage as the immediate and necessary consequence of the act which destroys such life, is too plain to require argument or illustration. The pecuniary loss occasioned to the owner of a dumb animal by the careless or willful act which destroys its life is no more the natural, necessary, and immediate result of the act than the loss occasioned to a tenant per autre vie by the destruction of the human life upon which his estate depends."

In Whitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302, whether one standing in loco parentis could recover for loss of service after the death of his foster child was left as "a question upon which we express no opinion."

It is plain that, since the opinion in Wyatt v. Williams, 43 N. H. 102, was delivered, there has been a judicial tendency to question the soundness of the common-law rule there stated. There has also been a succession of legislative acts, each evidently intended to modify the theory of recovery there announced. In 1879 it was enacted that—

In case of death by "wrongful act or neglect of another which, if death had not ensued, would have entitled the person injured to recover damages therefor, then, on the death of such person, his executor or administrator may, by suit brought within two years of such death, recover damages for the injury." Laws 1879, c. 35, § 1.

This statute was construed in Clark v. Manchester, 62 N. H. 577. It was held that the statute did not give the survivors a new cause of action to recover for the damage done to them, but "for the injury to the deceased which resulted in and caused his death. They are for the...