Watkins v. Boston & M. R. R.

• Decision Date: 08 November 1922
• Docket Number: No. 1790.,1790.
• Citation: 119 A. 206
• Parties: WATKINS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

119 A. 206

WATKINS

v. BOSTON & M. R. R.

No. 1790.

Supreme Court of New Hampshire. Merrimack.

Nov. 8, 1922.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Action by Arthur J. Watkins against the Boston & Maine Railroad. On petition for new trial of action reported in Watkins v. Hustis, 79 N. H. 285, 109 Atl. 713, for newly discovered evidence. The court, subject to exception, found plaintiff free from fault in not producing evidence at the former trial. Whether the evidence is sufficient to sustain a verdict for plaintiff was not ruled on and exceptions were also taken to evidence. Case transferred. Case discharged.

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

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

PEASLEE, J. It is not the practice in this state to consider questions of law which may not arise when all the facts are found, nor to consider questions sent up in advance of a final determination of the cause in the superior court, when it is evident that a decision thereon cannot aid in the proceedings in that court. Fitzhugh v. Railway (N. H.) 115 Atl. 803.

Upon the present petition for a new trial, the plaintiff's freedom from fault was found, and an exception to the sufficiency of the evidence to sustain that finding was transferred. No order was made, and the essential facts that justice has not been done and that a further heating would be equitable (McGinley v. Railroad, 79 N. H. 320, 321, 109 Atl. 715) have not been found. If, upon a consideration of these matters, the conclusion of the superior court upon either should be unfavorable to the plaintiff, his petition would be dismissed. And in the consideration of these questions no aid would be derived from a decision upon the exception now transferred. The presiding justice has passed upon one issue of fact, and has transferred the question of the sufficiency of the evidence to sustain the finding, without passing upon the other essential issues. As before stated, it is not the practice to consider question so presented. The plaintiff's freedom from fault having been found, consideration of the sufficiency of the evidence to sustain that finding is postponed until a complete finding upon the petition shows that such question is material to the final disposition of this proceeding. Fitzhugh v. Railway, supra.

The other question (transferred without exception or ruling) is whether the evidence as now presented is enough to take the case to the jury. The question sought to be raised in this manner is not now in issue. In this proceeding "what the plaintiff asks for, and what the statute authorizes to be given him, is a trial, an opportunity to litigate some matter in dispute, not a decision of the controversy." St. Pierre v. Foster, 75 N. H. 10, 12, 70 Atl. 289, 290, and cases cited. While in a case where "it is apparent that there are no questions to be tried" the petition will be denied upon that ground (Owen v. Derry, 71 N. H. 405, 52 Atl. 926; Rye v. Durham, 79 N. H. 51, 105 Atl. 362, and cases cited), yet that rule is not extended so that disputed questions going to the merits of the case are tried upon the petition, to the end that the petition should be denied i'f such questions are decided against the petitioner. Knight v. Haverhill, 77 N. H. 487, 93 Atl. 663.

Upon the present petition, there is no occasion to attempt to decide whether the evidence is sufficient to sustain a verdict. What the plaintiff must show here is that, with the new evidence, he presents a substantially different question from that raised at the first trial, as to the sufficiency of the evidence. If this is made out, then the determination of that new question must await the new trial, if one is granted. The evidence at that trial may differ from that presented at this hearing. Since some of it is in the form of ex parte affidavits, it is likely that it would so differ. The orderly and well-established procedure calls for the consideration of the question transferred at the new trial and not before. It may be, however, that the presiding justice intended to transfer the question which he must now decide; that is, whether the new evidence can be said to present a new question upon the motion for a nonsuit or directed verdict. As that is a matter which must be passed upon by the superior court, and as its decision here may aid in the proceedings there, it has been considered. Fitzhugh v. Railway, supra.

There is, in the new evidence, the testimony of witnesses tending to show the location of the accident more definitely than the evidence at the trial did. There is also added testimony as to the dangers incident to the use of the apron on the engine. It is manifest that in this state of the proof it could be found that the question of the sufficiency of the proof was substantially different. The evidence warrants a finding that the plaintiff presents a material question which he desires to litigate. Knight v. Haverhill, 77 N. H. 487, 488, 93 Atl. 663.

Whether it appears "that a different result will probably be reached if he is given a new trial" (Sanborn v. Railroad, 77 N. H 307, 308, 91 Atl. 865, 866), is also a question of fact (McGinley v. Railroad, 79 N. H. 320, 109 Atl. 715). The ultimate question upon which the verdict at the first trial was reversed was one of law. There was no sufficient evidence upon an essential point. New evidence now being offered, the presiding justice is not called upon to settle definitely that it will be held to be sufficient upon a new trial, any more than he was required, in McGinley v. Railroad, supra, to assure the defendant that it would secure a verdict of the jury at such trial. Probability of a different result is all that is now involved. If the different result is probable as distinguished from possible it is enough. McGinley v. Railroad, supra. In short, it all comes back to the proposition that the petitioner presents a substantial question which he desires to litigate.

Another question which has been argued is whether the mistake or misfortune relied upon is of a kind against which relief may be granted. The question is not raised by the case, but, as it has been twice argued, and as it will be involved in the disposition of the petition in the superior court, it has been considered.

Two early cases are relied upon as authority for the proposition that a mistake of counsel in the conduct of the cause is not a ground for relief. Handy v. Davis, 38 N. H. 411; Heath v. Marshall, 46 N. H. 40. The proposition stated in each of these cases may be open to the interpretation put upon it, but in each of them there is a finding of negligence upon which reliance is also placed, and in the first the opposing party has offered the petitioner all the relief he was equitably entitled to. It is important to note that both cases arose when the right of review existed, and that the rule then was that a stricter test applied to petitions for new trials in such cases than where there was no such right. Ordway v. Haynes, 47 N. H. 9; Brooks v. Howard, 58 N. H. 91. The right of review was taken away in 1878 (Laws 1878, c. 64); and the question, whether the alleged rule denying a new trial for such a mistake was no longer applicable, if it ever prevailed, does not appear to have received formal consideration and decision since that time. Cox v. Leviston, 66 N. H. 167, 20 Atl. 246, was a bill in equity, and also arose after the law of review had been repealed. The question of the meaning or the soundness of Handy v. Davis, supra, and Heath v. Marshall, supra, is stated, but the case was disposed of upon other grounds, and this question is in terms left without any expression of opinion upon it.

But while the question has not been discussed, it has, in effect, been decided many times, and in each instance against the supposed early rule. The cases include not only technical petitions for new trials, but also those under other statutes where procedural relief is granted for the same causes —accident, mistake, or misfortune. In none of these instances has the rule now claimed to have been laid down in the earlier cases been applied, and in many of them the decision must have been other than it was if that rule were now applicable. The most numerous class consists of cases relating to petitions for leave to file claims under the statute of highways. G. L, c. 75; P. S. c. 76. Beginning with Bolles v. Dalton, 59 N. H. 479, and ending with Rye v. Durham, 79 N. H. 51, 105 Atl. 362, relief has always been granted when the misfortune relied upon was ignorance of the law, and there was a finding of no negligence. And when by accident or mistake the original statement of claim was erroneous in fact, a case for relief is made out. Harvey v. Northwood, 65 N. H. 117, 19 Atl. 653, and cases cited. Relief has been granted upon similar grounds in probate appeals (Cossar v. Truesdale, 69 N. H. 490, 45 Atl. 252, and cases cited), and in tax appeals (Parsons v. Durham, 70 N. H. 44, 47 Atl. 600; Trust, etc., Co. v. Portsmouth, 59 N. H. 33).

While it is true that none of these cases relate to a new trial under the statute here relied upon (P. S. c. 230, § 1), yet the principles involved are the same, and the cases have always been treated as authorities in proceedings like the present one. When we turn to cases that are under this statute, it appears that the same principle has always been applied since the time when the query as to the soundness or applicability of the alleged rule to the contrary was suggested in Cox v. Leviston, 66 N. H. 167, 20 Atl. 246. Thus, in Dame v. Woods, 74 N. H. 212, 66 Atl. 484, plaintiff's counsel knew the essential facts before the first trial, but believed that they were immaterial. In St. Pierre v. Foster, 75 N. H. 10, 70 Atl. 289, the plaintiff failed to produce any evidence upon an essential issue. In Morin v. Nashua Mfg. Co., 78 N....