Opinion
Decided December 7, 1937.
In an action for negligently causing injuries, the defendant after excepting to the denial of his motion for a nonsuit offered no evidence to dispute liability but took exception to the denial of a motion for a directed verdict. The charge being uncertain as to whether the issue of liability was submitted or only the issue of damages a verdict for the plaintiff was set aside. A verdict will not ordinarily be ordered in favor of the party who has the burden of proof; nor for the plaintiff merely because the defendant offers no evidence.
ACTION ON THE CASE, brought originally by Bridget A. Buffum, the defendant's mother, to recover for personal injuries alleged to have been sustained by her on May 20, 1934, by reason of the negligent operation of the defendant's automobile. Bridget A. Buffum died on January 28, 1936, and the action was prosecuted by her administrator, who claimed that the decedent's death was caused by the accident. Trial by jury and verdict for the plaintiff.
On the day of the accident the defendant drove the decedent together with his wife and sister to St. Joseph's Cathedral on Pine Street in Manchester. His wife was seated beside him, and his mother and sister occupied the back seat. He stopped his car on the east side of Pine Street facing south. His wife and sister got out on the west or right-hand side of the car and walked around the rear of the car to the sidewalk. The decedent attempted to alight on the left-hand side, and while she was standing with one foot on the sidewalk and the other on the running board the defendant started the car suddenly and caused her to fall.
It was the defendant's principal contention at the trial that this accident had nothing whatever to do with the decedent's death. The reserved case contains the following statement: "It is agreed that counsel for the defendant did not refer to the question of liability either in direct or cross examination, his opening, or argument. And the defendant did not introduce any evidence to dispute liability."
Exceptions to the denial of motions for a nonsuit and directed verdict are now waived, and the only exception on which the defendant relies is an exception to the following paragraphs of the charge:
"This case apparently has resolved itself into a very narrow compass. The facts of the case on the question of liability are not contradicted, so that you may accept liability as being established. And the only question that I can see that will bother you at all is the question of damages.
"The plaintiff brought this suit during her lifetime, and since her death it has been prosecuted by the administrator. The suit of course is properly in Court, and all you have to consider is the amount of damages plaintiff is entitled to recover."
The plaintiff did not request this instruction or move for a directed verdict in his favor.
Transferred by Burque, J.
Timothy F. O'Connor, Myer Saidel and J. Francis Roche (Mr. Roche orally), for the plaintiff.
Devine Tobin (Mr. Tobin orally), for the defendant.
After instructing the jury that the only question before them was that of damages, the Presiding Justice went on to distinguish between the measure of damages in the event of a finding that the decedent "did not die as a direct result . . . of the accident" and the rule to be applied in case of a finding that her death was so caused. He next referred to the burden of proof on the issue of damages and then said: "The claim being made that defendants were negligent here must be proven, and is proven if, upon all the evidence in the case you are satisfied that the probabilities favor the claim that the defendants were negligent."
Invoking the rule which obtains in some jurisdictions permitting a judge to comment on the evidence (State v. LaVerne, 83 N.H. 419, 421), plaintiff's counsel suggest that the opening paragraphs of the charge merely embody the trial court's opinion of the merits of the controversy and that the jury must have understood from the instructions last quoted that the question of liability was submitted to them for decision.
It is unnecessary at this time to determine how far a judge in this State may express his view of the facts for the assistance of the jury, since that part of the charge to which exception was taken cannot be interpreted other than as an imperative instruction. If we assume, as the plaintiff contends, that the question of David W. Buffum's negligence was definitely submitted for a finding (the reference to "defendants" being inadvertent), then the instruction on that issue was in direct contradiction to the instructions given at the beginning of the charge and cannot have failed to mystify the jury. Cohn v. Saidel, 71 N.H. 558, 566. See also Smith v. Railroad, 88 N.H. 430, 433.
But the plaintiff claims that, although this be true, the verdict of the jury must stand, since both the evidence and the conduct of the trial clearly called for the direction of a verdict in his favor. This claim is untenable even on the assumption that a trial court may direct a verdict in the absence of a motion therefor.
The defendant was not obliged to introduce evidence but could if he saw fit, rely on the weakness of the plaintiff's case. Gaudette v. McLaughlin, 88 N.H. 368, 371; Ingalls v. Railroad, 83 N.H. 397, 398. "Only in exceptional cases may a verdict as matter of law be ordered in favor of one who has the burden of proof. . . . It is not ordered for the plaintiff because the defendant offers no evidence." Williams v. Duston, 79 N.H. 490, 491.
One of the plaintiff's witnesses testified that the defendant started the car "as if all the passengers had got out," that two of them had already alighted, and that he had "just barely started" when he evidently "realized something had happened" and "stopped quick again." This conduct was not necessarily negligent. There may have been circumstances which justified a reasonable belief on the defendant's part that the decedent had alighted with the others, and the plaintiff was required to establish the defendant's lack of ordinary care by a balance of probabilities. In this situation, the court could not properly direct a verdict on the issue of liability. Williams v. Duston, 79 N.H. 490; Hussey v. Railroad, 82 N.H. 236, 240; Webster v. Seavey, 83 N.H. 60, 62; Exeter Banking Co. v. Taylor, 85 N.H. 458, 460. There is no express finding that the defendant abandoned his defence on that issue and, in view of his motions for a nonsuit and directed verdict, a finding to that effect would be unwarranted.
New trial.
All concurred.