Walker v. Boston & M. R. R.

• Decision Date: 01 April 1902
• Citation: 71 N.H. 271,51 A. 918
• Parties: WALKER v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

51 A. 918

71 N.H. 271

WALKER

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Rockingham.

April 1, 1902.

Exceptions from Rockingham county.

Action by Alice B. Walker against the Boston & Maine Railroad. Verdict for plaintiff, and case transferred from the superior court on defendants' exceptions. Exceptions overruled.

The plaintiff, a passenger, claimed that she was injured by the sudden starting of the train when she was leaving the car. The plaintiff's evidence tended to prove that she and her sister attempted to leave the car within a reasonable time after the train stopped. On cross-examination the sister testified that as she stepped from the car she heard some one say: "You started without orders. You'll hear from this." This remark was not responsive to any question, and there was no evidence connecting it with the defendants. The conductor, engineer, and brakeman were called by the defendants, and the conductor and brakeman were asked if they heard this remark. The train consisted of an engine, baggage car, and two passenger coaches. The plaintiff's counsel, in his closing argument, said: "The plaintiff's sister said she heard some one say: 'You started without orders. You'll hear from this.'" The defendants' counsel claimed an exception. The plaintiff's counsel said, "Except, if you want to," and proceeded as follows: "You will remember that the defendants asked their conductor and brakeman if they heard any one make this statement, and their denial, but that they did not ask this question of their engineer. If they had asked him, he would have said that he heard it. This shows that the brakeman was not where he said he was when the accident happened; for, if he had been, he, as well as the engineer, would have heard it" There was evidence that the plaintiff is suffering from partial mental disability, induced by the shock, and that this partial disability may become total. The plaintiff's counsel argued that she was liable to become insane, and asked the jury to consider her mental condition, on the question of damages. The defendants requested the following instructions, which were denied, subject to their exception: "In assessing damages the jury cannot take into consideration any apprehension of insanity; neither can they consider the prospect of insanity." On the question of damages the jury were instructed as follows: "If you come to that question, you will give her as damages so much money as will fully compensate her for all loss of time and money she has or may hereafter suffer, and for all the pain, both physical and mental, which she has or may hereafter endure, as the direct natural, and probable result of the defendants' fault, as the evidence discloses it to you. If you find that she has nervous prostration, induced by dwelling upon her claim against the railroad, and on the probable result of her suit you will not consider it in assessing her damages. In assessing her damages, you will only consider the physical injury she actually received, and the mental pain and suffering which resulted directly from the injury. You will not consider any fictitious pain and suffering due to a disordered imagination, for she can only recover for actual, and not imaginary, pain."

Dwight Hall and Emery & Simes, for plaintiff.

Frink & Marvin, for defendants.

PARSONS, J. The requested instruction was, so far as applicable to the evidence, covered by the instructions given. Upon the question of damages for future physical and mental pain, the jury were limited by the instructions given to such suffering as was shown to be the direct natural, and probable result of the defendants' fault When the legal principle governing a case is fully stated in general terms, it is not error of law for the court to refuse instructions upon its application to particular evidence. The substance of the requested charge having been given, it is no...