Opinion
Decided June 26, 1936.
If the negligence of the plaintiff has been judicially determined in an earlier transfer of a case that question is no longer in issue and the last chance doctrine may be invoked in a later trial though the plaintiff then testifies that just before the accident he was in a position of safety. On certain evidence the last chance doctrine was applicable.
CASE, for negligence. Trial by jury. At the conclusion of the plaintiff's evidence the defendant moved for a nonsuit. Third trial of the same case reported in 87 N.H. 36 and 87 N.H. 434. Transferred by James, J. upon the agreement of the parties that "if there is any competent evidence to be submitted to a jury, there shall be judgment for the plaintiff for $4,000 as of Jan. 16, 1936; otherwise there shall be judgment for the defendant."
Lucier Dowd (Mr. Lucier orally), for the plaintiff.
Warren, Wilson, McLaughlin Bingham (Mr. Bingham orally), for the defendant.
The defendant contends that the last chance rule does not apply because the plaintiff is bound by his own assertion that just before the accident occurred he was standing in a place of safety. It is unnecessary to consider this contention. On the first transfer of the case it was judicially determined that the plaintiff was guilty of negligence as a matter of law. His fault "was therefore not in issue in the retrial." 87 N.H. 434, 439. For the same reason it cannot be made an issue now.
The defendant's remaining contention that the evidence is sufficient to sustain the verdict is also without merit. It was held on each of the former transfers that there was evidence to be submitted to the jury under the doctrine of the last clear chance. The evidence, before us on the present transfer is even more favorable to the plaintiff. It follows that the motion for a nonsuit should have been denied. Haakensen v. Company, 77 N.H. 588.
In accordance with the agreement of the parties, the order is
Judgment for the plaintiff for $4,000 as of January 16, 1936.