to perform it with safety particular skill or experience was required-there was no evidence of that character presented to the jury. So far as the case goes, the work was usually performed by boys, and the plaintiff himself had done the work for 14 weeks without harm. The plaintiff, although only 15 years of age, assumed the risk of the dangers of the occupation which he knew and understood. Cronin v. Company, 75 N. H. 319, 74 Atl. 180, 29 L. R. A. (N. S.) 111. The jury cannot find material facts without evidence. Reynolds v. Fiber Co., 73 N. H. 126, 131, 59 Atl. 615. In the absence of evidence that the plaintiff got onto the ropes through some secret defect or danger of which the defendant knew and the plaintiff did not, or some evidence that the work was of a character prudent men would not employ boys to perform, the jury could not reasonably find the defendant in fault. "The burden of proof was upon the plaintiff, and the absence of evidence in relation to these matters does not sustain that burden. The mere fact of injury does not establish the defendant's fault. If the absence of proof is due to mistake or misfortune, justice can hereafter be done upon proper proceedings in the superior court; but the possibility of evidence cannot sustain a verdict rendered without evidence upon an essential point." Hicks v. Company, 74 N. H. 154, 157, 158, 65 Atl. 1075, 1077; Dame v. Car Works, 71 N. H. 407, 52 Atl. 864. Exceptions sustained; verdict set aside. YOUNG and PLUMMER, JJ., did not sit. The others concurred. (77 N. H. 299) NAWN v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Merrimack. June 2, 1914.) 1. EVIDENCE (§ 126*) RES GESTÆ STATEMENTS OF INJURED PERSON. In an action for death, there was no error of law in admitting a statement made by deceased as to the cause of the injury, where there was evidence that he was unconscious from the time he was struck until the declaration was made, since the declaration could be found to have resulted spontaneously from the injury, and not to have been the result of reflection and consideration. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 372-376; Dec. Dig. § 126.**] 2. TRIAL ($138*)-RECEPTION OF EVIDENCESUFFICIENCY OF PRELIMINARY PROOF-DE TERMINATION. Where, in an action for death, a declaration by deceased as to the cause of the injury was offered and there was evidence that it was made as soon as he regained consciousness after the injury, whether he was unconscious up to the time of making the declaration was a question of fact, to be decided by the court in ruling upon the admissibility of the evidence. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 322; Dec. Dig. § 138.*] of his injury was offered in evidence was unconscious from the time of the injury to the fact or of discretion as to the remoteness of the time of making the declaration, the question of statement could not be reviewed by the Supreme Court, though the trial justice in admitting the evidence reserved the discretion of the court, whether the evidence warranted the finding that the declaration was near enough in time, considering the mental condition of the injured party, to be properly admitted. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970.*] Where, in an action for the death of an employé killed while carrying boiler flues across railroad tracks, a witness was asked if he noticed whether deceased paid any attention to the tracks, his answer that he noticed that before he picked up a flue he looked up the track was responsive to the question. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 861-863; Dec. Dig. § 248.*] 6. MASTER AND SERVANT (§ 274*)-ACTIONS FOR INJURIES-EVIDENCE CONTRIBUTORY NEGLIGENCE. - In an action for the death of an employé engaged in carrying boiler flues across railroad tracks, and struck by a train about 20 minutes after he commenced work, evidence that on one or more occasions prior to the trip during which he was struck he looked up the track before picking up a flue for the purpose of carrying it across was properly admitted. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*] 7. MASTER AND SERVANT (§§ 204, 265*)—AcTIONS FOR INJURIES-BURDEN OF PROOF. Under Laws 1911, c. 163, § 2, authorizing a recovery for personal injuries to an employe in the course of any of the employments specified in section 1, and providing that the workman shall not be held to have assumed the risk of any injury due to any cause therein specified, but that there shall be no liability under that section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed, the defense of assumption of risk is wholly destroyed, and plaintiff is relieved of the burden of recover if the case discloses no evidence upon proving freedom from fault, and is entitled to the question of contributory negligence, or if the evidence is evenly balanced. Servant, Cent. Dig. 88 544-546, 877-908, 955; [Ed. Note.-For other cases, see Master and Dec. Dig. §§ 204, 265.*] 8. MASTER AND SERVANT (§ 289*)-ACTIONS FOR INJURIES-QUESTIONS FOR JURY. In an action for the death of an employé of a railroad company struck by a train while carrying boiler flues across railroad tracks about 20 minutes after he commenced work, evi 3. APPEAL AND ERROR (§ 970*)-REVIEW-dence held to make a question for the jury as to DISCRETIONARY MATTERS PRELIMINARY his freedom from contributory negligence. PROOF. Where there was evidence that an injured person whose statement as to the cause [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Transferred from Superior Court, Merrimack County; Chamberlin, Judge. Case by Thomas Nawn, administrator, against the Boston & Maine Railroad, for negligence resulting in the death of William Powell, the plaintiff's intestate. Transferred from the superior court on defendant's exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor and to the admission of certain evidence. Exceptions overruled. Powell was employed by the defendants. On the morning of his injury he was at work carrying boiler flues across the track at the defendants' storehouse in Concord, and was struck by a derrick car which backed down upon him. The plaintiff offered in evidence a declaration by Powell with respect to the cause of his injury. There was evidence that he was unconscious from the time he was struck until the declaration was made. The court admitted the declaration subject to the defendants' exception, and reserved the discretion of the court whether the evidence warranted the finding that the declaration was near enough in point of time, considering the mental condition of Powell, to be properly admitted. Subject to the defendants' exception, a witness who was not present at the time of the accident was permitted to testify that on one or more occasions before the last Powell looked up the track before picking up a flue for the purpose of carrying it across. John M. Stark and Martin & Howe, all of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, for defendants. PARSONS, C. J. [1] 1. There was no error of law in the conclusion of the trial court that under the circumstances the declaration offered was so connected with the fact of injury as to be admissible. Dorr v. Railway, 76 N. H. 16A, 80 Atl. 336; Robinson v. Stahl, 74 N. H. 310, 67 Atl. 577. "When a person receives a sudden injury, it is natural for him, if in the possession of his faculties, to state at once how it happened. *** This view of the common experience of mankind shows that, if the declaration has that character, it possesses an important element of reliability and significance which is foreign to narrative remarks made so long after the event as to derive directly no probative force from it." Murray v. Railroad, 72 N. H. 32, 37, 38, 54 Atl. 289, 292 (61 L. R. A. 495, 101 Am. St. Rep. 660). Whether the declarations offered are spontaneous, the result of the transaction, or are made after an opportunity for reflection -whether their weight as evidence is found in the circumstances under which they were made, or in the credibility of the declarantare considerations which govern the admissibility of evidence of this character. Murray v. Railroad, supra, and cases cited, 72 N. H. 37, 54 Atl. 289, 61 L. R. A. 495, 101 Am. St. Rep. 660; 3 Wig. Ev., §§ 1747, 1748. If, as the evidence tended to show the declaration was made with the declarant's first consciousness after the accident, it could be found to result spontaneously from the injury, and to be a part of what took place so far as the declarant was concerned, and not to have been the result of reflection and consideration by him. So made the declaration was admissible. [2, 3] Whether the declarant was or was not unconscious, as the evidence tended to prove, is a question of fact to be decided by the court in ruling upon the admissibility of the evidence. of a proposed piece of evidence involves a "When the determination of the competency preliminary decision of any questions of fact by the presiding judge, his decision in such matters of fact is final, and not subject to exception." Hurlburt v. Bellows, 50 N. H. 105, 115, 116. In made upon the fact that the presiding judge In this case, decided in 1870, comment is reserved no question of fact, or of discretion for the consideration of the law court: the present case, the justice of the superior court presiding at the trial reserved "the discretion of the court whether the evidence warranted the finding that the declaration mental condition of the deceased, to be propwas near enough in time, considering the erly admitted." If this reservation was intended merely to present the question whether the unconsciousness of the declarant from the time of the accident to the time of the declaration was a fact competent for consideration upon the question of remoteness, and whether upon the evidence it could be found the declaration was not too remote, the reservation presents questions of law which have been considered. [4] "Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court." Darling v. Westmoreland, 52 N. H. 401, 408, 13 Am. Rep. 55; Bundy v. Hyde, 50 N. H. 116, 120; Jaques v. Chandler, 73 Ñ. H. 376, 62 Atl. 713. In Glover v. Baker, 76 N. H. 261, 81 Atl. 1081, it was held that the justices of the superior court might reserve and transfer to this court for determination questions of law arising before them, without prior decision in that court. The question now appears to be presented whether they may send to this court for revision their conclusions upon matters of fact which are questions of law only because passed upon by the court and not by the jury. In the case (Bundy v. Hyde, cited above) in which the definition of "discretion" was formulated, it was said: "It is quite proper at any time, and certainand difficulty, for the presiding justice to rely expedient, in a case of considerable doubt serve the question of discretion for the revision of the whole court." Since that time very many cases have been decided in which it has been held that matters arising in the conduct of the trial term, in which the question is what ought to be done, what does justice require in the par- 74 In many cases, in ruling that no question was presented by an exception to such findings, it has been remarked that no question of discretion has been reserved. These expressions tend to show an understanding that the finding of fact involved in determining a motion for a new trial, limiting costs, permitting leading questions, excluding evidence for remoteness, and the like, might be reserved and transferred to the law court, but the jurisdiction does not appear to have been recently examined with particular reference to this class of questions. In Kent v. Hutchins, 50 N. H. 92, 94, decided in July, 1870, it is said: "In matters of discretion, no exception lies to the ruling as matter of right. But in this case the court reserved the question as to the proper exercise of the discretion, and our opinion is that the discretion was properly and wisely exercised." In Paul v. Reed, 52 N. H, 136, 138, decided in June, 1872, the question was when the title passed upon a sale of chattels. The court say: conclusive upon one side or the other the evidence recited in the case may seem to be, and ed. Jones v. Aqueduct, 62 N. H. 488. There though all the evidence relating to it is reportthe reserved case contained an express finding (omitted as immaterial in the reported case) that 'herein are stated all the facts and circumstances claimed by either party to have any bearing upon the question whether the use made by the defendants of their land and of the water is or not a reasonable use." Either because of a change in the statute or in judicial interpretation, it is clear it was not understood in 1901 that the court at the law term had the jurisdiction to determine questions of fact, which was exercised in Paul v. Reed, supra. It is to be remembered that prior to 1901 the individual judges who held the trial terms sat together as the law court. While trial terms might generally be held by a single justice (P. S., c. 207, § 1), there was no limitation to that number. In capital cases two were required (P. S., c. 254, § 2), while in cases of great importance more, or all of the court, sat together as trial judges. Attorney General v. Taggart, a case in which all the judges sat, reported 66 N. H. 362, 29 Atl. 1027, 25 L. R. A. 613, was considered to be in the trial term for Hillsborough county. Bingham v. Jewett, 66 N. H. 382, 29 Atl. 694, and Eastman v. Jewett, 66 N. H. 623, 29 Atl. 695, were proceedings in the trial term. The present Supreme Court has the jurisdiction of all matters and things of which the court existing when the statute was passed had at the law term. Laws 1901, c. 78, § 2; Glover v. Baker, 76 N. H. 261, 269, 81 Atl. 1081. Whether all the judges sitting together who indi "This is a question of fact, but it is submitted to the court for decision. Ordinarily it should be passed upon at the trial term; but where the question is a mixed one of law and fact, as it is here, it may not be irregular, if the judge thinks it best, to reserve the entire ques-vidually held the trial terms called their astion for the whole court." The court then proceeds to dispose of the case upon the assumption that questions both of law and fact are reserved. If, as sembly a law or a trial term might seem mere verbiage; but the fact that the distinction was made is decisive of the jurisdiction of the present court over questions of fact Metcalf v. Weed, supra, this court has refusin the trial term. Accordingly, following Although in 1870, in Bundy v. Hyde, the court recognized the propriety of the reserva tion of questions of discretion in difficult cases, in 1877, immediately after the reorganFuller v. Bailey, 58 N. H. 71, 72: ization of the court in 1876, it was said in this case tends to show, it was understood, as the court was organized in 1872, that the court at the law terms had jurisdictioned to pass upon questions of fact, even when of questions of fact which might be pending apparently referred to it by the superior at the trial terms, that view was entirely court. Ledoux v. Nashua, 75 N. H. 481, 76 abandoned under the later acts, which de- Atl. 249; Crowley v. Crowley, 72 N. H. 241, clared the jurisdiction to he "of questions 243, 56 Atl. 190. of law arising at a trial term, reserved or assigned for decision." P. S., c. 204, § 3. In Metcalf v. Weed, 66 N. H. 176, 19 Atl. 1091, the question was whether a search warrant sufficiently described the place to be searched. It was said that a description which identifies with reasonable certainty the place or places to be searched was legally sufficient. All the facts were found, and it was plainly the intent of the reservation to transfer to the law term the determination of the sufficiency of the description. But it was said to be a question of fact whether the description in the warrant designated the place to be searched with reasonable certainty. "A question of fact is not ordinarily determined at the law term, however, strong or the evidence is one which the court at the trial "The question whether a verdict is against term would not ordinarily reserve, and which the court at the law term would generally refuse to consider if it were reserved." The distinction between law and fact in the decisions of the court was not so clearly observed in the early judicial history of the state, when all the questions of law and fact were blended together upon the docket and heard by the same judges Glover v. Baker, 76 N. H. 261, 263, 81 Atl. 1081, 1086. Since that time the tendency of statutory change and judicial decision has been to mark with greater clearness the dividing line. "The fundamental purpose of the act of 1901 was to disassociate the judges of law from the judges of fact." Glover v. Baker, 76 N. H. 261, 270, 81 Atl. 1081. The judicial system as now established requires that questions of fact arising in the course of trials in the superior court shall be there decided, and the jurisdiction of the Supreme Court is thereby limited to the question of law, whether there was evidence upon which the decision could reasonably be made as it was. Jaques v. Chandler, 73 N. H. 376, 382, 62 Atl. 713. As there was evidence upon which the declaration objected to could be found not too remote to aid in the decision of the question on trial, the record presents no other question as to this evidence within the control of this court. The [5, 6] 2. The deceased was employed to carry boiler flues from piles upon the west side of a track in the railroad yard, across the track to a shop on the east side. He went to work at seven in the morning, and about 20 minutes later was injured by a derrick car backed down the track, which struck him just as he stepped upon the track to carry a flue across. A witness, who observed him at work, being asked, "Did you notice whether he paid any attention to the tracks?" answered, "I noticed that before he picked up a flue he looked up the track," whereupon the defendants excepted: inquiry was competent, and the answer responsive. The question called for a part of the history of the transaction leading up to the accident, and tended to throw light on the question whether the deceased was acting without any regard to the dangers of his work place. Whether the answer tended to prove that just before he started on the fatal trip across the track he looked up, and whether, if he did, such act was evidence of care, are questions not raised by the general exception to the answer. No rule of law limits the evidence of the morning's events to the fraction of a minute while Powell was walking from the flue pile to the track upon his last trip. So much of what took place as the presiding judge found not too remote to aid the jury was competent. 3. The defendants' motions for a nonsuit and a verdict are based upon the claim that Powell's fault was part of the cause of his injury. [7, 8] It is conceded that under the recent decision in Boody v. Company, 77 N. H. 208, 90 Atl. 859, the deceased's employment at the time of the injury was one of those described in section 1, chapter 163, Laws 1911. The defendants as employers not having accepted the provisions of the act as provided in section 3, the rule of liability in this case is prescribed by section 2, which provides: "The workman shall not be held to have assumed the risk of any injury due to any cause specified in this section; but there shall be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed." By these provisions the defense of assumption of risk is wholly destroyed, and the plaintiff is relieved of the burden of proving the deceased's freedom from fault as a cause of the injury. If the case discloses no evidence upon the question, or the evidence is evenly balanced, the plaintiff may recover. It is only when the evidence balances in the defendant's favor that the defense of the contributory negligence of the injured As the jury is the employé may prevail. only tribunal authorized to weigh evidence, to determine upon which side the preponderance lies, the cases would seem to be few in which the judgment of that tribunal must not be invoked. If the plaintiff's evidence does not conclusively show the injured party's want of care, and evidence on that issue is presented by the defendant, it would ordinarily be for the jury to believe or disbelieve the defendant's witnesses. Lally v. Insurance Co., 75 N. H. 188, 190, 72 Atl. 208; Pillsbury v. Pillsbury, 20 N. H. 90, 97. To justify a nonsuit it must conclusively ap pear that the evidence leads to but one conclusion. Perham v. Lane, 76 N. H. 580, 83 Atl. 805; State v. Leary, 75 N. H. 459. 462, 76 Atl. 192, 44 L. R. A. (N. S.) 457; State v. Harrington, 69 N. H. 496, 45 Atl. 404. In other words, concretely applying the principle, can a reasoning mind fail to reach the conclusion that Powell was in fault? This was his first employment; the accident occurred within 20 minutes after he went to work. If he had looked to the north immediately before he stepped upon the track, he probably would have escaped injury. Was his failure to look both ways at the moment of his entry upon the track so plainly careless, in view of his knowledge of the situation, that he must be held in fault? That he looked to the north lefore picking up a flue is evidence of his understanding of the extent of the danger, from that direction. Whether the profane warning the defendants' witness testified was given him to be careful of that switcher, "it is running back and forth all the time," was in fact given was for the jury to say. They might not believe such a witness; or, if they did, they might think from the way Powell was doing his work that he did not understand the switcher would be run at such a speed over his work place, that looking in that direction before he picked up a flue was not sufficient precaution. There was conflict as to the speed at which the derrick car train was run. On one view of the evidence, it may not have been in sight when Powell started to take up the flue. That running a train in such a way over a track where other employés were set at work is own name. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*] 6. DAMAGES (§ 208*)-TRIAL (§ 139*)-QUESTIONS OF FACT-WEIGHT OF EVIDENCE. the evidence and also the amount of damages In a personal injury action, the weight of was for the jury in the trial court. evidence of negligence is not contested. Rea- [ time or impairment of earning capacity was sonable men might conclude that with Pow- harmless, as the father would be thereafter esell's inexperience in railroad work he was topped from bringing an action therefor in his not careless because he failed to anticipate and guard himself against such recklessness in operation. As it might be found the train was not in sight just before Powell took up the flue for his last trip, the fact that he was struck does not conclusively prove that he did not then look. If, as the defendants contend, the evidence that he looked on two or three previous trips before picking up a flue is not legally competent to prove that he did look on the last trip, its incompetency might leave the case without evidence on the point, but would not establish "a preponderance of evidence" that he did not look. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534: Dec. Dig. § 208;* Trial, Cent. Dig. $$ 332, 333, 338-341, 365; Dec. Dig. § 139.*] Appeal from Superior Court, New London County; Milton A. Shumway, Judge. Action by Margaret Kenure against the Brainerd & Armstrong Company. Judgment for plaintiff, and defendant appeals. Affirmed. Michael Kenealy, of Stamford, and Charles V. James, of Norwich, for appellant. Hadlai A. Hull, Charles Hadlai Hull, and Frank L. McGuire, all of New London, for appellee. THAYER, J. The plaintiff is a minor and sues by her father, as next friend. The complaint alleges serious and permanent physical injuries caused by the defendant's negligence, resulting in great pain and suffering to her, in incapacitating her to pursue a course of study in stenography which she had been theretofore pursuing, and in causing her to expend a large sum of money in being cured. The finding shows that evi 2. PARENT AND CHILD (§ 16*)-SERVICES AND dence was introduced in support of these EARNINGS-EMANCIPATION. A father, by emancipating his minor child, could permit her to appropriate her time and services to herself, or might waive his right to payment for such services or to damages for being deprived of them. [Ed. Note. For other cases, see Parent and Child, Cent. Dig. §§ 165-175; Dec. Dig. § 16.*] 3. ESTOPPEL (§ 68*)-EQUITABLE ESTOPPELINCONSISTENT POSITION-ACTIONS FOR INJURIES TO CHILD. A father, who, as next friend of his minor child, sues and recovers in her name damages to which the child, unless emancipated, is not entitled, thereby estops himself from thereafter, in an action in his own name, recovering for the same damages. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*] 4. ESTOPPEL (§ 68*)-EQUITABLE ESTOPPELINCONSISTENT POSITION-ACTIONS FOR INJURIES TO CHILD. Though, in an action by a father, as next friend of his minor child, for damages to such child, a recovery of damages for her permanent injuries and pain and suffering would be no bar to a recovery by the father for loss of her services, yet it would be inequitable to permit him to treat these in one action as belonging to her and afterwards in another action as belonging to him. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*] 5. APPEAL AND ERROR (§ 1067*)-HARMLESS ERROR-INSTRUCTIONS. In an action by a father, as next friend of his minor child, any error in refusing to charge that plaintiff could not recover for her loss of claims, and also to prove that her earning capacity had, from the time of her injury, been seriously impaired and decreased, and that, for a period of about one year immediately following her injury, she was un able to work. It also states that there was that she had at any time been emancipated no evidence showing, or tending to show, by her parents or either of them, or that she was entitled to her own earnings. The charge of the court is criticised because it failed to inform the jury that the plaintiff was not entitled to recover for her. loss of time and services during her minority, because it failed to inform them that she was not entitled to recover for loss or impairment of earning capacity during her minority or for any pecuniary damage caused by her injuries during her minority, and because of the statement in the charge that "no claim is made before you that in this action she is entitled to recover anything for her loss of time up to the present.” [1-5] It is true, as claimed by the defendant, that the plaintiff's time and services during her minority belonged to her father, unless she had been emancipated by him. But the father, by emancipating her, could permit her to appropriate her time and services to herself, or might waive his right to payment for such services or to damages for *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |