Webster v. Seavey

• Decision Date: 07 June 1927
• Parties: WEBSTER v. SEAVEY.
• Court: New Hampshire Supreme Court

138 A. 541

WEBSTER

v. SEAVEY.

Supreme Court of New Hampshire. Rockingham.

June 7, 1927.

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

Case by Earle T. Webster against Randolph Seavey. Verdict for defendant, and suit transferred on plaintiff's exceptions. Verdict set aside, and new trial granted.

Case, for negligence. The plaintiff, while hunting, was shot in the leg by the defendant, who mistook him for a deer. Trial by jury and verdict for the defendant. The plaintiff excepted to the refusal of the court to grant certain requests for instructions and to the denial of his motion to set aside the verdict on account of the alleged misconduct of certain jurors.

William H. Sleeper, of Exeter, for plaintiff.

George T. Hughes, of Dover, and George R. Scammon, of Exeter, for defendant.

MARBLE, J. The accident occurred near Pigeon hill, so-called, in Effingham, November 15, 1923. The plaintiff and defendant together with the witnesses Glidden and Keniston were hunting deer. They had been out since early morning and had met at a certain bridge late in the forenoon. The defendant describes the accident as follows:

"I met Mr. Glidden, and we went down towards the bridge, and we had a general consultation there of what we would do, and we made arrangements to go up the path and spread out toward Pigeon hill, and then go to dinner. We were to go in so many yards apart, or so many feet, keep a proper distance apart, and go through and see if we couldn't start something in the woods toward Pigeon hill. Mr. Webster went into the woods first, and we wanted him to go along a little farther with us boys, but he didn't seem to care to go. He wanted to go in there, so the other three of us went along up further, and we went in about 100, probably 50, yards apart. I think Mr. Keniston and Mr. Glidden and myself—I don't know which one went in first; I couldn't remember; but I was the last one. I went up around to the meadow; went across to Pigeon hill. I waited there some time and whistled and nobody answered, and my thoughts was, 'I guess the boys have all thought I have been a little too long, and they know that I can get back over to the house, and they are getting hungry and they are gone to dinner.' So after a time I went back into the swamp. I heard some rustling out in the swamp; went back into the swamp; thought I heard some rustling out there, and thought I would just whistle to see if I could attract anybody's attention; and walking along very slowly, I suppose this object at a distance caught my eye, and I turned quick, and, of course, thinking it was a deer, I shot. * * * As soon as I fired, why at first there seemed to be no response. I could see nothing at the distance, and I thought, 'Well, I guess, Seavey, you have made a mistake this time— poor shot.' And I started to move along. Then I heard the noise of somebody—particular noise. And at first I thought, 'Well, I guess I have wounded a deer.' And then, a second—why, I could realize it was a human being, and my thoughts was to rush over there and find out who it was; then I rushed over, and I found Mr. Webster there."

The plaintiff requested the court to instruct the jury that:

"On all the evidence the defendant was negligent in firing at the time and in the way he did."

If the defendant told the truth, he did not fire without taking some precaution. His testimony on that point is as follows:

"Q. When with reference to the time that you shot did you whistle? A. Well, of course, it was probably short duration of time. I couldn't say how long; probably might have been a minute, half a minute, few seconds.

"Q. Why did you whistle, Mr. Seavey? A. Well, I heard a little rustling noise out in the woods, and I wanted to make sure that it wasn't anybody out there.

"Q. Was that a custom that had been followed by you? A. Well, yes; that is a general custom that I usually made in the woods.

"Q. Is there a custom of whistling in the woods? A. Well, we use that custom a great many times by men that is familiar with the woods.

"Q. Did you get any response to your whistle? A. No, sir."

Whether the defendant's story was entitled to belief, and, if so, whether the precaution he took constituted reasonable care were plainly questions of fact. The request was in effect a motion to direct a verdict for the plaintiff on the issue of the defendant's negligence, and, since the testimony on that issue was susceptible of opposite inferences, the request was properly denied. Williams v. Duston, 79 N. H. 490, 111 A. 690; Hussey v. Railroad, 82 N. H. 236, 240, 133 A. 9.

A like question was raised by five other requests, each of which called for a ruling of law that certain conduct on the part of the defendant constituted negligence. Obviously, this was a question for the jury. Williams, v. Railroad, 82 N. H. 253, 257, 132 A. 682.

On the day of the accident the plaintiff did not wear a "special gunner's outfit" comprising a red cap and checkered...