Whittemore v. Boston & Maine Railroad , 77 N.H. 61 ( 1913 )

Upon a former transfer of this case (Whittemore v. Railroad, 76 N.H. 388) it was decided that the defendants' act in ejecting the plaintiff from their train at Hinsdale after he had purchased a ticket from Hinsdale to West Swanzey was wrongful. This conclusion was reached upon the theory that the plaintiff's journey or contract of carriage from South Vernon to West Swanzey was, on the facts found, terminated at Hinsdale when the defendants ejected him from the train, and that thereafter he was entitled to the same rights and should have been accorded the same privileges as were due any other member of the public applying for transportation. If this decision involved the determination of a federal question, the defendants no doubt can preserve their rights and have the question reviewed in the federal court; but questions once decided in this court are not re-examined in the same case upon a subsequent transfer. Kidd v. Trust Co., 75 N.H. 154, 158.

There remains to be considered the question presented by the plaintiff's exceptions to the ruling of the trial court excluding certain evidence that was offered upon the question of damages, and which tended to prove that the plaintiff sustained an aggravation of a previous injury by walking a portion of the distance to his home in West Swanzey. It is conceded by the defendants that the fact the plaintiff surrendered his ticket and received back his money does not preclude him from recovering such damages as he sustained that were directly due to their tortious act. Boothby v. Railway,66 N.H. 342; Coy v. Company, 146 Ind. 655, 662-665; Schumaker v. Railroad, 46 Minn. 39; Christianson v. Railway, 67 Minn. 94,97; 1 Sedg. Dam. (9th ed.), ss. 140-143; 25 Harv. Law Rev. 103, 223, 303. Their contention is that, inasmuch as the plaintiff might have taken the afternoon train or some other mode of conveyance to his home, he cannot recover damages arising out of an aggravation of a previous injury and incurred by making the journey on foot. But the fact that he made the journey on foot, when he might have awaited the arrival of the afternoon train or procured some other mode of conveyance, is not determinative of the question. The solution is rather to be found by ascertaining whether the plaintiff, in view of all the circumstances, exercised reasonable care when he concluded to make the trip on foot; and if he did, the jury would be warranted in finding that the damages he sustained by reason of the aggravation of his previous injury were a direct consequence of the defendants' tortious act, without regard to whether the particular damage could or could not have been foreseen by them. Tuttle v. Farmington,58 N.H. 13; Boynton v. Somersworth, 58 N.H. 321; Rafferty v. Drew,64 N.H. 616; Boothby v. Railway, 66 N.H. 342, 344; Seeton v. Dunbarton,73 N.H. 134, 137; Prescott v. Robinson, 74 N.H. 460, 461, 462; Brown v. Railway, 54 Wis. 342; 3 Sedg. Dam. (9th ed.), ss. 870, 871, 872. As there was evidence from which it could have been found that the plaintiff exercised due care in the particular named, the evidence objected to was improperly excluded.

Exceptions sustained.

All concurred.