Story v. Concord & Montreal Railroad , 70 N.H. 364 ( 1900 )

The exception to the denial of the defendants' motion for a nonsuit raises the questions, first, whether there was evidence from which the jury could properly find that the defendants were negligent, and, second, whether the plaintiff's knowledge that the track was owned, managed, controlled, and cared for by the Boston Maine Railroad constituted a defence.

The law imposes upon the master the duty to use ordinary care to protect his servants from injury while they are engaged in the performance of their work. He must use ordinary care to provide them with a suitable place in which to work, and notify them of dangers of which he is aware or ought to be aware, but of which his servants by the exercise of like care are unable to inform themselves. Mitchell v. Railroad, 68 N.H. 96, 116; Collins v. Car Co., 68 N.H. 196, 198. It is immaterial whether the master owns the premises where his servants are employed, or simply has permission to use them for the purposes of his business. In either event the premises are the place he provides for them in which to work.

The defendants, through an arrangement with the Boston Maine Railroad, had provided the plaintiff with the track where the accident occurred as the place in which he was required to work. They were therefore bound to use ordinary care to keep it in suitable repair, and to learn of and inform him of dangers which he, by the exercise of like care, was unable to inform himself.

From the testimony of the plaintiff's witnesses that the rails were displaced and that there were rotten ties under them, the jury might reasonably find that the track was unsuitable for the work required of the plaintiff upon it; and that by ordinary care the defendants would have learned of its condition, and should have induced the Boston Maine Railroad to repair it, ceased to make use of it if not repaired, or notified the plaintiff of the danger of the situation.

It appeared that the repairs upon the track were made by the Boston Maine Railroad. The plaintiff knew this fact, and also that this corporation owned the track and had the exclusive management and control thereof. Because of this knowledge, the defendants say that the plaintiff assumed the risk of injury from the track. A servant assumes the risk of injury from dangers incident to his employment, including the danger that follows the master's failure to perform his duty, only when he knows or by ordinary care ought to know of their existence. Henderson v. Williams,66 N.H. 405; Casey v. Railway, 68 N.H. 162; Hardy v. Railroad, 68 N.H. 523,536; Burnham v. Railroad, 68 N.H. 567, 568. Although the plaintiff knew that the track was owned, managed, and controlled by the Boston Maine Railroad, it did not appear that he knew that the defendants would not be able to induce the owners to make all necessary repairs upon it; that, failing in this, they would not cease to make use of the track; or that they would not notify him of the situation so that he might be in a position to protect himself. It therefore cannot be held as a matter of law that he assumed the risk of danger that resulted in his injury. The motion for a nonsuit was properly denied.

The rule in relation to incompetent statements in a counsel's argument is much like the rule in respect to the admission of irrelevant testimony. A trial is not fair in a legal sense when the verdict is procured by incompetent evidence. Nor is it fair when statements respecting matters not in evidence, but material to some issue, or matters irrelevant to every issue and calculated to prejudice the adverse party, are made by counsel, and it is not found that they did not influence the jury. Bullard v. Railroad, 64 N.H. 27. So long as counsel confine their comments to the evidence and the matter in issue, it is their privilege "to arraign the conduct of parties; impugn, excuse, justify, or condemn motives, so far as they are developed in evidence; assail the credibility of witnesses when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances"; and in so doing, "the largest and most liberal freedom of speech is allowed, and the law protects them in it." Tucker v. Henniker, 41 N.H. 317, 323. The decided cases in this state in which verdicts have been set aside on account of the conduct of counsel come within the rule which excludes incompetent matters, both in evidence and in argument. In no case has a verdict been set aside when the remarks of counsel were founded on evidence which related to a material issue, no matter what the form of the statement, how forcibly it was put, or how much it tended to prejudice the jury in favor of his client. Mitchell v. Railroad, 68 N.H. 96, 117; Dow v. Weare, 68 N.H. 345; Shute v. Company,69 N.H. 210, 212. The cases in which verdicts have been set aside on this account, either in opening the case to the jury, in the examination of witnesses, or in the closing argument, may be divided into three classes. First, where counsel have stated facts material to some issue in the case which were not or could not be put in evidence. Tucker v. Henniker,41 N.H. 317, 322; Cross v. Grant, 62 N.H. 675, 686; Bullard v. Railroad,64 N.H. 27; Perkins v. Burley, 64 N.H. 524; Baldwin v. Railway,64 N.H. 596; Jordan v. Wallace, 67 N.H. 175; Robertson v. Madison,67 N.H. 205; Heald v. Railroad, 68 N.H. 49; Greenfield v. Kennett,69 N.H. 419; Concord etc. Co. v. Clough, post. Second, where counsel have stated facts which were not only irrelevant to every issue in the case, but also calculated to prejudice the jury. Hilliard v. Beattie, 59 N.H. 462; Baldwin v. Railway, 64 N.H. 596; Noble v. Portsmouth, 67 N.H. 183; Pearson v. Beef Co., 69 N.H. 584. Third, where counsel have been permitted to urge the jury to draw from evidence properly in the case for one purpose conclusions which it had no tendency to prove. State v. Foley, 45 N.H. 466; Harrington v. Wadesworth, 63 N.H. 400.

If, therefore; there was evidence on which the plaintiff's counsel could have properly based his remarks, — "What! keep a man who had been so reckless and who had done this awful thing they tell you about; keep him in their employ; keep him day after day; keep him until the present moment; keep him in his bed when he should have been here and testified!" — and they were relevant to any of the issues he was discussing, they were legitimate.

According to the defendants' theory, the accident was caused by the carelessness of their engineer in running his train too fast over the track in question. It appears that he was continued in their employment in the same capacity after the accident until they leased their road to the Boston Maine Railroad, and that he has been employed in a like capacity by this railroad ever since. The defendants produced a physician, who testified that the engineer was ill at his home in Manchester and unable to attend court. Upon cross-examination he testified that the engineer was able to give his deposition. The plaintiff's counsel, within the hearing of the jury, offered to suspend the trial and take his deposition, but the defendants' counsel declined, saying that they not care to take it, but that the plaintiff could take it if he chose. The defendants' purpose in offering evidence of the illness of the engineer must have been to give the jury to understand that, but for this illness, they should have produced him to testify as to the speed the train was going. The object was to avoid the unfavorable inference that the jury might draw from the engineer's unexplained absence. Bullard v. Railroad, 64 N.H. 27, 31. If there was no reason to question their motives when the physician's evidence was offered, there was reason to question them when they refused the offer of the plaintiff's counsel to suspend the trial and take the deposition of the engineer. The position in which the defendants stood was, that they had asked the jury to believe that they were anxious to have the testimony of the engineer, but were finally forced to admit that they did not want it. The jury must have seen that the ostensible motive of the defendants in offering evidence of the engineer's illness was not the real one, and might fairly conclude that the physician's testimony was not true. The plaintiff's statement that the defendants kept the engineer in bed was only a forceful way of asking the jury to find that they did not want to use him because they knew his testimony would be hurtful to their case. The statement was legitimate argument upon the evidence in the case.

Motion for rehearing denied.

PEASLEE, J., did not sit: BLODGETT, C. J., and PARSONS, J., dissented from the conclusion that the argument of counsel was legitimate, but concurred upon the other questions: the others concurred.