Hussey v. Railroad , 82 N.H. 236 ( 1926 )

The defendant's motion is based upon the propositions that the expert testimony was not admissible for any purpose, and that the instruction that the verdict must be based upon the evidence and not upon conjecture did not cure the error in the reception of the evidence.

The testimony, to the introduction of which exceptions were taken, related to the action and effect of electricity under certain circumstances. It was to the effect that the slight shock one might receive from the lighting circuit would be likely to cause involuntary motion, and that if the load on the high tension wires ran up, as it sometimes did, the current would jump a greater space than when the load was less. It was objected to upon the ground that there was no evidence that the conditions described existed at the time of the accident, and it was "admitted for what it is worth." There was evidence that the conditions may have existed. There was no request to limit the use of the evidence.

The defendant's case on the decedent's care rests upon the proposition that he negligently came in contact with the wires. There was no direct evidence that he did so; and the defense must be sustained, if at all, upon the proposition that all other hypotheses of how the occurrence came about are excluded by a balance of the probabilities. The proposition is like in kind to that presented when guilt of crime is sought to be shown by proof of exclusive opportunity.

In this situation it was open to the plaintiff to show one or many other ways in which the result might have been caused. She was not bound to prove that any of them was the cause in fact. Of course the more closely any of them was linked to the occurrence the greater its value in destroying the inference the defendant sought to draw. As the intimacy of their relation decreased the remoteness of the evidence increased.

Reliance is put upon Nadeau v. Stevens, 79 N.H. 502, as authority against the admission of this evidence. In that case the plaintiff relied upon the negligence of B in tightening a brake rope, thereby causing a gear to break. There was no evidence as to B's conduct at the time. It was held that expert evidence that such action would cause the result was improperly admitted, and judgment was ordered for the defendant. If there had been a claim that the gear must have been defective because the break would not have occurred if it had not been, the evidence would have been admissible, as tending to show another cause which may have operated and therefore tending to deny the claim of exclusive chance for causation.

In that event, as in the present instance, evidence tending to show that something else may have been the cause would be admissible in answer to the exclusionary claim. The rule has been most frequently invoked in criminal cases, but it applies to civil suits as well. Typical instances of its use are those presenting questions as to exclusive opportunity, motive, threats and the like. But it is not confined to such instances. It is a general rule.

"Of the other kinds of evidence, it can only be said that the inclination should always be to admit any one of them, unless totally without probative suggestion." 1 Wig. Ev., s. 142; see, also, Commonwealth v. Trefethen,157 Mass. 180.

The object of the evidence here introduced was not primarily to prove that the suggested causes were in operation. Its office was to show that they may have been. The plaintiff's task was to destroy the defendant's case on this issue, not to build a stronger one. The evidence was introduced to show the weakness of the inference the defendant sought to draw. To do this it was not necessary to establish a stronger inference. It was only necessary to prove circumstances of sufficient weight so that any balance of likelihood in favor of the defendant's position was overcome.

While the admission of this class of evidence may not have been passed upon in this jurisdiction, the principle involved has been recognized as sound; and such proof has frequently been the controlling factor in close cases. The instances are numerous where an inference of a fact has been deemed not to be well grounded because the circumstances in proof showed that other inferences might be drawn. That matter has frequently been discussed, and the competency of the facts as evidence seems never to have been questioned. Deschenes v. Railroad: 69 N.H. 285; Dame v. Car Company,71 N.H. 407; Reynolds v. Company, 73 N.H. 126; Boucher v. Larochelle,74 N.H. 433; Lockwood v. Company, 76 N.H. 530; Dingman v. Merrill,77 N.H. 485; Castonia v. Railroad, 78 N.H. 348; Upton v. Company,81 N.H. 489, and cases cited.

"`Arguments upon evidence are generally arguments from effects to causes; and in proportion as the number of possible causes of a given effect increases, the force of the argument is diminished. . . .' J. F. Stephens Cr. Law, 307." Darling v. Westmoreland, 52 N.H. 401, 411.

The evidence was also admissible upon the issue of the defendant's fault in maintaining the combination of appliances it did. The question being whether a reasonable man would construct a work place in so dangerous a fashion, it was of course permissible to show any and all dangers that were involved in such a situation.

This conclusion necessarily follows from the fundamental rule concerning anticipatory obligation. Precautionary duty is dependent upon reason to apprehend results. Shea v. Railroad, 69 N.H. 361; Minot v. Railroad,73 N.H. 317; Blood v. New Boston, 77 N.H. 464; Martel v. White Mills,79 N.H. 439; Cunningham v. Spaulding, 80 N.H. 335; Kenney v. Len,81 N.H. 427; Derosier v. Company, 81 N.H. 451; Tullgren v. Company, post.

It was not essential that the plaintiff should show that all these dangers entered into the causation of the accident. All foreseeable dangers are to be considered in the solution of the problem whether the creation of the situation was a negligent act. If there were ten foreseeable contingencies, their existence might make the creation of the situation negligent, although it might not have been so if only one of the contingencies had existed. Collins v. Hustis, 79 N.H. 446, 449. When several exist, and their existence makes the creation of the situation negligent, injury resulting from any one of them makes the defendant liable. Ela v. Cable Company, 71 N.H. 1. The others are provable in such a case, not to show the cause for the accident, but to establish the defendant's fault in cresting or maintaining the cause.

If it is conceded that the evidence was not sufficient to warrant a finding that Hussey was killed because he put his finger into the light socket, or because there was an unusually high voltage which increased the distance the current would jump, the evidence was still properly in the case, for the purposes before indicated. The jury were instructed generally that their verdict must be based upon the evidence and not upon conjecture. If the defendant desired more specific instructions, or a ruling that a verdict could not be found upon those grounds that were not sufficiently shown, it should have made the appropriate requests. Lord v. Railway,74 N.H. 295.

The statement in the former opinion of the law governing the situation is too brief and too general. It is not to be taken as a declaration of a rule applicable to evidence not properly in the case for any purpose. The opinion or expert evidence being properly in the case for one purpose, its reception and use was not made error because there were no facts in evidence to warrant another use. Dow v. Merrill, 65 N.H. 107, and cases cited; Cobb v. Follansbee, 79 N.H. 205. In the absence of special requests, the general instruction that the verdict must be based upon the evidence was sufficient.

Former result affirmed.

All concurred.