WIFE ant's negligence before instructing as to plain-
tiff's care is not ground of exception.
[Ed. Note.-For other cases, see Trial, Cent.
Dig. 509; Dec. Dig. § 228.*]
17. TRIAL (§ 295*)
STRUCTION AS A WHOLE.

11. RAILROADS (§ 282*)—INJURIES TO LICEN-ed of a licensee on a railroad track is reasonSEE-ACTION-EVIDENCE.

In an action for personal injuries, that ing merely a notice, is not demurrable and does the court charged on the question of defend- not require an answer. The proper course is to

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Exceptions from Superior Court, Merri- | fendant. mack County; Pike, Judge.

known the shifter might come up the track before train No. 5 came in. There are two tracks outside the shed used for shifting purposes. If both of these are blocked, an engine cannot pass from south to north except through the train shed. On the morning of the accident these outside tracks were block

ings at the northwesterly corner of the train sheds to make up the Hillsborough and Claremont trains. If the road engines came out from the roundhouse south of the station, and went to the yard north of the station in good season, they shifted their trains onto their respective sidings. If they were late out, the shifter placed the trains. The road engines were not out this morning. From these facts it is argued that the only way for the shifter to get to the head end of these trains was through the train shed, and that the plaintiff knew or ought to have known this fact and have been on the lookout. There are several answers to this proposition. It does not conclusively appear that the plaintiff knew the outside tracks were both blocked. It does not appear that he knew the road engines were not out; and it was only in that event that there would be any call for the shifter to go north. Lastly, there was nothing to prevent the shifter from pushing one of the trains up into the north yard and then proceeding in the usual way. The considerations here urged are merely evidentiary facts, tending to prove the defendant's contentions. They do not conclude the matter, nor authorize the withdrawal from the jury of the question whether these pieces of evidence or those leading to the opposite conclusion were of the greater weight. The motion to direct a verdict was properly denied.

tion was properly sustained. The contracts | it insists that the plaintiff should have differ in no essential respect from those considered in Baker v. Railroad, 74 N. H. 100, 65 Atl. 386, 124 Am. St. Rep. 937. There was abundant evidence that the release was obtained by fraud. It appeared from the testimony of witnesses, and from the plaintiff's signature upon the release, that he was not in a normal condition at the time it was ex-ed by cars which were to be shifted onto sidecuted. He was not then able to read, and did not know that the paper was a release, or that it in any way concerned the defendant. He was not informed as to its contents, and supposed it was merely a voucher for his month's pay, which was the sum received. There was also evidence that, before he was sent for to go to the express company's office, he had been told by the party who obtained the release that his pay would be allowed to him while he was incapacitated. He had no idea that he was dealing with an agent of the defendant. It further appeared that the agent subsequently attempted to conceal the nature of the transaction from the plaintiff's wife, and assured her that the paper had no reference to the defendant. The exception to the admission of this evidence on this issue must be overruled. The defendant claims the benefit of the acts of the person obtaining the release, and is therefore chargeable with all his acts which are parts of that transaction. Rolfe v. Railroad, 69 N. H. 476, 477, 45 Atl. 251, and cases cited. It is urged in support of the motion to direct a verdict that the evidence brings the case within the class of which Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426, is a type, rather than that of which Minot v. Railroad, 73 N. H. 317, 61 Atl. 509, 74 N. H. 230, 66 Atl. 825, is typical. That there was evidence of the defendant's fault is not open to question. It ran a shifting engine over the tracks through the passenger train shed in Concord in an unusual way at a high rate of speed and without warning. The real issue is upon the care of the plaintiff. There was evidence which would have warranted the jury in finding the state of facts related below. The plaintiff in the course of his employment as a servant of the express company went across the tracks in the station to a car standing on the track next east of the train shed. As he went he saw the shifter standing among the switches below the train shed and about 1,000 feet from him. It had been the custom, as he had observed it in seven years' experience, for the shifter to wait there until train No. 5 came in from Boston. Until that time it had no business in the train shed. He had reason to think that no train or engine would pass over the tracks for more than ten minutes. Acting upon this belief, he recrossed the track without taking further precautions, and was struck by the shifter.

The defendant concedes that such facts would bring the case within the principles

Various exceptions to evidence are urged. The plaintiff testified on cross-examination, in response to the inquiry "How far is it from the place where you left the Hillsborough car to the place on the White Mountain track where you were hit?" "I don't know. They dragged me 117 feet." The defendant excepted to this, to expert testimony based upon it, and to the argument of counsel that it was probable that, when the plaintiff returned to work some two months after the accident, he would "go down and see how far they dragged him." The evidence was properly admitted. Glauber Mfg. Co. v. Voter, 70 N. H. 332, 333, 47 Atl. 612, and cases cited. The argument stated no fact not in evidence, but properly urged upon the jury's attention an established opportunity to obtain the knowledge testified to.

The plaintiff's testimony that he did not understand that the agent of the express company from whom he received the $65 represented the defendant was admissible upon the issue of fraud in obtaining the re lease.

give some credence to fixed the percentage higher. The mortality tables were compe tent evidence of the plaintiff's expectation of life. 3 Wig. Ev. § 1698, and cases cited. The exceptions to the closing argument of the plaintiff's counsel to the jury must be overruled. It has not been pointed out wherein there was any attempt to state any fact which was not in evidence, nor that the court confirmed any erroneous view of the law. Story v. Railroad, 70 N. H. 364, 376, 387, 48 Atl. 288, 296. "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."

gave his deposition would be a fact to con- | although statistics which he was bound to sider in determining the weight to be given to the answers he made. There was no error in allowing his wife to testify on that topic. While demeanor evidence is usually supplied by the actual observation of the witness by the jury, yet when, as here, his appearance of nervousness and confusion, as the examination went on, could not be observed by them, it was properly put in evi- | dence by the testimony of those who did observe it. 2 Wig. Ev. § 946. If he had testified on the stand and had manifestly become so wearied by the strain of the examination that his answers, which had theretofore been clear and responsive, became incoherent or confused, it would have been proper for the jury to consider this fact in determining the weight to attach to the later responses. The evidence that it would be safer to run the shifter over the outside tracks than over those in the train shed is excepted to upon the ground that it tended to prove negligence in a matter not involved in this suit. One issue in this case was whether it was negligent to run a shifter over the track in the train shed. Evidence that there was another and safer way to do the business would plainly have a tendency to prove that it was negligent to adopt the more dangerous method.

The 'exceptions to the instructions given and refused remain to be considered. At one place in the charge the court said: “The defendants further claim that, even if the plaintiff originally had a cause of action against them for the injuries complained of, he has released it." The defendant excepted upon the ground that it "tends to give the jury the impression that taking the release was an admission of liability." It now urges this exception. It appears from the record that just before the jury retired the court gave them this instruction: "If you find that the release was invalid, you will not consider it upon the plaintiff's or defendant's negligence. It has no bearing whatever, is an independent matter, and, having passed upon whether it is a proper release or not, you will not consider it any further in the case; that is, it has no bearing whatever upon the plaintiff's negligence, or defendant's negligence." Comment seems unnecessary. The exception is overruled.

Exceptions to various instructions, upon the ground that there is no evidence to which they can apply, are disposed of by what has been said upon the motion to direct a verdict.

The sixth exception is to putting the question of the defendant's negligence before the plaintiff's care in giving the instructions. That this is the usual way of stating the case no one familiar with jury trials since negli

The testimony of Dr. Richardson as to traumatic injuries causing multiple sclerosis was properly admitted. He said: "I hope It is understood that this is not of my own experience. It is statistics which have been published. Statistics give as high as 20 per cent. of cases. The most reliable statistics now known are those of the Vanderbilt clinic in New York, which give 10 per cent. of all cases received there as being of traumatic origin." "The limit of safety in this direction is reached, it would seem, when we admit, as the practice in this state is, the opinions of medical men, for instance, with regard to a disease which in actual practice they may not have treated, but concerning which the science and skill of long experience in the affinities and analogies of the subject have prepared them to speak with confidence from a knowledge of the rules and laws governing the special sub-gence suits have become numerous will deny. ject of inquiry." Dole v. Johnson, 50 N. H. 452, 456. The jury are to be given the expert opinion of the witness founded upon the authorities. See State v. Wood, 53 N. H. 484; Ordway v. Haynes, 50 N. H. 159. This is the substance of what was done in the present instance. The witness could not truthfully state a fixed percentage. The best that could fairly be done was to give the reasonable limitations, and this the witness undertook to do. In its last analysis the testimony rested upon his judgment to give it value. It was in effect his opinion that probably about 10 per cent. of the cases

In any event, the objection states no question of law. Elwell v. Roper, 72 N. H. 585, 58 Atl. 507; Walker v. Railroad, 71 N. H. 271, 51 Atl. 918; Rubles v. Belmont, 62 N. H. 365. And beyond all this, when the court took up the subjects in detail, the plaintiff's care was considered first. The jury were instructed that negligence on the part of the defendant might be found from the failure to give warning, the failure to keep or provide a proper lookout, or from the excessive speed. The defendant excepted upon the ground that these omissions would not have been negligence towards the plaintiff unless

|

the parties were heard upon the motion by brief and oral argument.

Mitchell, Foster & Lake and Martin & Howe, for the motion. Henry F. Hollis and James W. Remick, opposed.

and the engineer knew or ought to have known he was acting on such belief. This instruction was given in substance. The jury were told that there was no duty to keep a lookout, etc., except so far as there were reasonable grounds to believe that people would be there. In Waldron v. Railroad, 71 N. H. WALKER, J. This case has been argued 362, 52 Atl. 443, the engineer had no reason by counsel and considered by the court upon to think the plaintiff would go on the track, the theory that the defendant filed a special and that fact broadly distinguishes that case plea setting up the contracts, and that a defrom the present one. The legal principle | murrer to the special plea was sustained, governing the point "was fully stated in the thereby presenting the question whether the general instructions. Each party had an facts pleaded constituted a defense to the acopportunity in argument to apply it to his tion. Upon the record, however, the only view of the facts, and it was not error of plea filed was "not guilty." The plaintiff delaw for the court to refuse to give instruc- murred to parts of the brief statement actions on its application to particular evi- companying the plea, and filed replications in dence." Rublee v. Belmont, 62 N. H. 365, and which the defendant did not join. A brief cases cited. statement, being merely a notice, is not demurrable, and does not require an answer. If it is considered insufficient, the proper course is to move to reject it, or to object to the evidence when offered. Leslie v. Harlow, 18 N. H. 518, 519; Folsom v. Brown, 25 N. H. 114; Clough v. Clough, 26 N. H. 24; Pallet v. Sargent, 36 N. H. 496; Vaughan v. Morrison, 55 N. H. 580, 581. Since the brief statement was not demurrable, it was technically error to sustain the demurrer. But it is apparent the parties, informally perhaps, submitted to the trial court the competency of the evidence set out in the brief statement as a bar, and the defendant submitted to the determination of the judge as the law of the case, as it was bound to do (Batchelder v. Railway, 72 N. H. 329, 56 Atl. 752), considered that it was protected by its exception. Justice would therefore allow it a new trial, even if it could technically be deprived thereof. For the purposes of another trial it is necessary to dispose of the questions that have been argued.

There was no error in the refusal to give the 40 requested instructions. The instruction that, if Piper knew the outside tracks were blocked, he could not recover, was rightly refused. As has been heretofore indicated, this fact would not be conclusive of the case. The instructions relating to the details of Piper's reliance upon the custom of the switching engine to wait for the Boston train were included in the general instructions on that subject. The test given to the jury was the usual one-reasonable conduct under the circumstances of the case. The instruction that the evidence showed that, after the engineer saw Piper, he did all he could to avoid the accident, was properly refused, as relating to an issue not submitted to the jury. They were told that they might find negli gence in the matter of a general warning, of failure to set and keep a proper lookout, or of excessive speed. But it is also true that the evidence was not conclusive that the engineer stopped as quickly as he could. There was testimony that, if the engine was no going faster than the engineer testified that it was, it could have been stopped in less than half the distance the plaintiff testified that they dragged him. From this it could be found that the engineer did not do everything required of him after he saw Piper. The instruction that the engineer was war-waive any right to damages for personal inranted in assuming that Piper would stop before he reached the track was properly refused. Minot v. Railroad, 73 N. H. 317, 61 Atl. 509. The instructions wherein the court was requested to charge the jury as to the effect of specified evidence was properly refused. Having correctly stated the general rules of law applicable to the facts, it was not incumbent on the court to make a specific application of them. Rublee v. Belmont, 62 N. H. 365.

Exceptions overruled.

YOUNG, J., dissented. The other Judges concurred.

On Rehearing.

After the filing of the foregoing opinion,

The position of the railroad is that, assuming the plaintiff's injuries were caused by the negligence of its servants, he cannot maintain this action, for the reason that he had agreed as a material part of the arrangement by which he was permitted or employed to work in its train shed that he would

juries caused by the negligence of the defendant's servants that he might otherwise be entitled to. The facts upon which this contention is based are admitted by the demurrer; and the question of law presented is whether that agreement is binding on the plaintiff in this action. He insists that it is void for the reason that it is against public policy, and argues that the defendant is a common carrier of expresses, and that it would be repugnant to its public duties as such carrier to provide in its contract with the express company that the employés of the latter company should assume the risk of injuries caused by the negligence of the defendant's servants. But it is essential to a correct understanding of the point in issue to ascertain