Bresnehan v. Gove

Walker, J.

The plaintiff assumed the burden of showing by a preponderance of evidence that the defendant was guilty of negligence which naturally resulted in, or caused, the injury complained of, and that he himself was exercising due care. That there was competent evidence in his favor upon both of these issues may be true; but the question is whether the facts disclosed by the case render it certain as a proposition of law that lie is entitled tp a verdict. Although the referee has found a general verdict in favor of the defendant, the plaintiff insists that the law applicable to the facts renders such a result erroneous, and demonstrates that a verdict in his favor should be ordered. In other words, his position is that the reserved case conclusively establishes the fact that the defendant’s negligence was the proximate cause of the plaintiff’s injury; for, if it appears that the referee’s general finding may be legally supported by the facts, the verdict must stand, although some other tribunal might have reached the opposite result upon the same evidence. No specific findings are reported upon the issues of negligence presented by the case; and since the determination of those issues depends upon inferences of the existence or non-existence of reasonable care and prudence in the conduct of the parties, to be drawn from the reported facts, the duty of *238 drawing such inferences falls within the appropriate province of the trier of the facts (Nutter v. Railroad, 60 N. H. 483, 485;

Stark v. Lancaster, 57 N. H. 88, 93), unless it appears that reasonable men could not differ as to the conclusions warranted thereby.

Hardy v. Railroad, 68 N. H. 523, 536.

The referee has found that when the defendant was some distance from the place of the accident, the plaintiff started to run across the street, and that if he had continued to run in that direction he' would have reached the sidewalk and avoided the collision with the defendant’s team. If it be conceded that the plaintiff’s act in running across the street was not a negligent one under the circumstances, it was competent for the referee to find that his ceasing to run and ’standing in the street in front of the defendant’s approaching team was negligence, which was the proximate cause of his injury. If a man in the full possession of his faculties had done the same thing under the same circumstances, it could not be doubted that a finding that he was negligent would be amply supported by the evidentiary facts reported. The mere fact that the plaintiff did not see the defendant’s swiftly approaching team does not necessarily relieve him from the imputation of negligence. Indeed, it might be strong evidence of Ms want of reasonable care in not ascertaining the conditions surrounding him. To run Mto the middle of a public thoroughfare and to stand there without givmg any attention to the approach of teams that he ought reasonably to anticipate,— to close his eyes to the obvious dangers of his situation,— would at least be evidence of negligence on Ms part naturally and directly contributmg to Ms injury, m case a passing team collided with him while in that position. The question would be: was he in the exercise of due care? If he was, his right to recover would depend upon the finding in regard to the defendant’s negligence. If he was not, the ‘question might arise whether the defendant, after discovering the plaintiff’s perilous position, or being, in fault for not discoverrng it, could have prevented the collision by the exercise of reasonable care; for if he could, it would be his duty to do so, and his neglect to perform that duty might be deemed the proximate cause of the accident.

Parkinson v. Railway, ante, p.

28. Both parties may have been negligent, while the negligence of one alone may have been the efficient legal cause of the collision. To ascertain what that cause was and to whose negligence it is chargeable would require a finding of fact, as to which, in cases like the present, reasonable men might differ. It would be, therefore, a question for the tribunal trying the facts — not for the court decidMg the law.

If it is assumed that the speed at which the defendant was *239 driving bis team at the time of the accident was illegal, because in violation of an ordinance of the city and of the provision of the statute (P. S., c.

264, s.

18), that fact is only evidence that if he had been driving at a slower rate the collision might not have occurred, and hence that it was the efficient cause of the accident as a matter of fact. But it does not establish the proposition, as a matter of law, that if his rate of speed had not exceeded five miles an hour (the statutory limit) the accident would not have happened, or that the plaintiff, in the exercise of such care as he was bound to use in view of his knowledge of the character of the driving on the street at that time, might not have protected himself from injury. Such conclusions would naturally require a consideration of the distance between the parties after the plaintiff stopped running; for it might be true that if the horse was traveling only four or five miles an hour the collision would be as liable to happen as it was while he was going at a greater rate; and if this were so, the fact of the defendant’s illegal speed would not be of controlling importance upon the question of' his liability.

Brember v. Jones, 67 N. H. 374;

Bly v. Railway, 67 N. H. 474, 478;

Clark v. Railroad, 64 N. H. 323;

Nutter v. Railroad, 60 N. H. 483;

Norris v. Litchfield, 35 N. H. 271, 277. If, as the plaintiff claims, he had a right to assume that parties driving horses on the street would keep within the legal rate of speed, he cannot recover upon that ground, unless the defendant’s illegal speed was the proximate cause of the injury. The finding of a verdict for the defendant is equivalent to a specific finding that it did not have that effect, and is not inconsistent with the facts reported.

The fact that the plaintiff was only eleven years of age does not relieve him in this case from the obligation to use such care and prudence as persons of his age and intelligence would naturally be expected to use under the same circumstances. To say that boys of that age are incapable of exercising care, when placed in positions of danger, would contradict the universal experience of mankind. “ An infant is bound to use the reason he possesses, and to exercise the degree of care and caution of which he is capable. If the plaintiff could by the due exercise of his intellectual and physical powers have avoided the injury, he is no more entitled to recover than an adult would be under the same circumstances.” Bu ch v. Company, 69 N. H. 257, 259;

Bisaillon v. Blood, 64 N. H. 565;

Morey v, Railway, 171 Mass. 164 ;

Thompson v. Railway, 145 N. Y. 196 . Whether the plaintiff was laboring under great mental excitement and fear when the accident occurred, and, if so, what effect that nervous condition had upon the degree of care he exercised to avoid injury from passing *240 teams, and liow far it would furnish an excuse for his negligent, acts, are questions not specifically answered by the case and not-capable of solution as matters of law.

Exception overruled.

All concurred.