Monroe v. Lumber Co. , 68 N.H. 89 ( 1894 )

The demurrer was rightly overruled. It is useless at this day and in this jurisdiction to discuss the proposition that towns have not such an interest in the highways within their limits as to enable them to maintain an action upon the case for their destruction or obstruction; and the verdict, holding one of the defendants liable and acquitting the others, renders it equally useless to discuss the question of misjoinder.

The jury having been properly instructed that the previous statements of the witness Waite could be considered by them only as bearing upon his credibility, the defendants could not have been prejudiced by the reading of such portions of the statements as were not inconsistent with his testimony on the stand; and so, under the universal rule of practice in such cases, no reason is furnished for disturbing the verdict. Nor is any reason for disturbing it furnished by the exception to the argument of plaintiffs' counsel to the jury, that the statements were true and the testimony false. Nobody can reasonably doubt the legitimacy of such an argument.

There is no finding in the case that the alleged improper argument of plaintiff's counsel in reference to the education of the defendants "about destroying dams, bridges, and property along the banks of the river," was in fact made, nor is any exception allowed on this subject; consequently there is nothing which can now be considered.

The testimony of Cross and of Hadlock as to the additional expense in the cost of maintaining the new road over the old one, was competent. It was one of the elements of damage in the case. Troy v. Cheshire R. R.,23 N.H. 83, 98.

Evidence against the defendants individually was properly admitted under the declaration, which alleges separate acts of negligence against each of them, by the combined and concurrent effect of which it is claimed the injury happened; nor did the introduction of such evidence against one of the defendants legally constitute an election by the plaintiffs to proceed against him alone for his individual wrong. The plaintiff, s' case was made up of parts, and embraced many separate and several acts, each of which is alleged to have contributed to the injury; and it was the plaintiffs' right to have all of these acts weighed by the jury, who could place the responsibility of the defendants where they might deem it rightfully to belong.

The defendants' offer to show that after they bought the mill and the dam, in 1886, they never received any notice from the selectmen or other officers of Monroe, or from any source, that the dam was unsafe and insufficient, was properly excluded. No such notice was necessary. Whatever may have been the condition of the dam before its purchase by the defendants, they then became bound to keep it in a reasonably safe condition. As its owners and occupants, it was a duty cast upon the defendants by the law to so use and maintain the dam as not to unnecessarily endanger the safety or property of others; and if they neglected this duty, the law makes them liable for the consequences.

On the question whether the defendants in the driving and management of their logs exercised ordinary care, the jury were instructed, among other things, that they might properly consider what they would or would not have done had they been placed in the defendants' situation; and to this the defendants excepted. In support of this exception it is contended that, as the subject of driving and managing logs in the river is one calling for expert knowledge and was so treated at the trial, the jury of non-experts could not properly consider what they would or would not have done under the circumstances. In other words, the contention of the defendants is that the ordinary layman cannot legally measure the degree of care to be exercised in a business requiring expert knowledge, by his own judgment as to what he would or would not have done in that business, — he having no knowledge or skill in regard to it; and that, in effect, the instruction to the jury was precisely the contrary. We do not so understand it.

But if the instruction, taken abstractly, may be justly subject to the criticism made upon it by the defendants, all grounds of criticism are removed when it is construed, as it fairly must be, in connection with the other instructions on the same subject, which were as follows: "There is no absolute test fixed by law by which the measure of care required in a particular case can be determined. The only standard is to be found in the carefully considered, dispassionate judgment of the jury in view of all the circumstances of the case. The question always is: What would a person of average prudence do under like circumstances? If such a person, placed in exactly the same situation as the party whose conduct is in question, possessed of the same knowledge as he had of all the surrounding facts and circumstances, including the danger of resultant injury and the means of avoiding it, would or might have done as such person did, he is free from fault and not responsible for any accident or injury that may happen. . . . Did the Lumber Company, their officers, agents, and servants (because, being a corporation, they could act only by or through their officers, agents, and servants), exercise ordinary care in running their logs and permitting them to accumulate in the jam and elsewhere in the yard, or in falling to remove them prior to the washout? On this question you will consider the position of the logs, the number of them, the extent of the jam, and what effect, if any, the logs had, the means of preventing their accumulation, the stage of the water, the currents of the river, — in short, all the considerations urged upon you by counsel upon both sides, and all the evidence in the case. And on this question, as upon the like question in the case of Van Dyke and McFarland, you will be likely to, and properly may, consider what you would or would not have done had you been placed in their situation. If' you find that they did exercise ordinary care, — that persons of average prudence placed in their situation, possessed of their knowledge and means of knowledge of the proper management and driving of logs, their effect upon the dam, and of all the other circumstances, would or might have done as they did, both in permitting the logs to accumulate and in failing to remove them, — you will return a verdict for the Lumber Company. If you find that they did not exercise ordinary care in thus allowing the logs to accumulate, or in failing to remove them, and that they contributed to the washout, your verdict will be for the plaintiffs."

In the light of these instructions, construed as a whole in the same connected way in which they were given, it is more than morally certain that the jury were not misled by the particular instruction complained of; and if they were not, even though the instruction was erroneous, no ground is presented for reversing their judgment. But this is not all. Fairly construed, the instruction was not erroneous. It is not to be doubted that the jury might, upon ball the evidence and arguments before them, properly consider what they would or would not have done had they been placed in the defendants' situation; and such only was the instruction.

The numerous other exceptions appearing in the case, but not insisted upon at the argument, need not be considered.

Exceptions overruled.

CARPENTER, J., did not sit: the others concurred.