In support of their motion the plaintiffs contend that in the two transfers of the instant case this court has taken inconsistent positions in respect to the application of rule 103.
At the first transfer, reported in 87 N.H. 246, there was an agreement to the effect that "the place of accident was not a yard," and "there was evidence upon which . . . [the rule's] application to similar situations could be found." Under these circumstances we held, citing Derosier v. Company, 81 N.H. 451, that "The question of application was for the jury. If applicable to the place, the *Page 437 rule was an admission of duty. If not applicable to the particular place, the rule and custom might yet, because offered generally, be regarded as `evidence of a kind of protection which might be found to be suitable if protection . . . were found to be a duty of the defendant'."
At the second transfer the situation was radically different. There was then no agreement that the place of accident was not a yard and there was no evidence that the rule had ever been applied to "similar situations." Under these circumstances the court below charged the jury to the effect "that the rule itself did not apply to the situation at the time of the accident," but that they might consider it "as evidence of a precaution that the ordinary man of average prudence would take, and as evidence that the defendant had knowledge of a suitable kind of protection." In holding the above quoted parts of the charge erroneous in that the rule should not have been considered by the jury for any purpose, we said: "The rule was a special one not applicable to shifting or making up trains in yards, and was only for observance in running a train backwards." In other words, we held that the rule did not apply either to the particular situation which existed on the night of the accident or to any situation similar to it in its material features.
Two questions must be considered before it can be determined what use, if any, may be made of the rule in the case at bar. The meaning of its terms, its construction, must first be considered, and then the question arises as to whether or not it applied to the train movements which were being carried out on the night of the accident. If it applied to the precise situation then presented the jury might consider it as an admission of a duty owed to these plaintiffs. If it did not apply to that precise situation but did apply to a substantially similar one, then it might be considered by the jury "as evidence of a kind of protection which might be found to be suitable." On the other hand, if it applied only to some radically different railroad movement, then it should not have been considered by the jury for any purpose.
Whatever may be the application of the rule to shifting operations outside of yards, it is perfectly clear that it does not apply when "shifting or making up trains in yards." There is no room for any other construction of its terms. It is equally clear from the records of both trials that the movements of the freight train on the night of the accident, constituted a shifting or switching operation. The question remaining is whether or not these operations took place in a yard. *Page 438
As pointed out above, at the first transfer of this case there was an agreement to the effect that "the place of accident was not a yard," while at the second transfer no such agreement was made. At this transfer, then, we must determine whether or not the freight train was being shifted either in a yard, or in a place similar to a yard, when the accident occurred.
The present record clearly establishes that the railroad had never designated any portions of its property in the vicinity of Rockingham Junction as a "yard," in the strict or limited sense of that term, but it also appears that its tracks at that place were used for the storage of cars when not in use and for the switching operations essential to the making up and breaking up of trains. It also appears that one of the defendant's employees considered that its tracks at that point constituted a "yard."
The term "yard," in the construction of statutes, even in the construction of penal ones, is considered not as limited only to places so designated by the railroad, but is interpreted to include places "upon which are railroad tracks, used for the purpose of receiving and storing cars when not in use, or used for the purpose of switching, in the distribution of cars and engines to other places, and in the making up of trains." Chicago Northwestern Ry. Co. v. Chicago, 151 Ill. 348, 357; George v. Railroad, 179 Mo. App. 283; Baltimore and Ohio c. Ry. Co. v. Little, 149 Ind. 167, 172, 173; Harley v. Railroad, 57 Fed. 144; 51 C. J. 372.
It follows from the foregoing that the accident happened in a place which had all the essential features of a "yard" and which must, therefore, be held to come within the exception to the rule. In consequence the rule, by its terms, had no application to the situation. The language of the rule is equivalent to an express declaration that the safeguard therein specified is not required in such places. In spite of this declaration, the instruction of the court permitted the jury to use this rule as the basis of a finding that the safeguard in question was "a precaution that the man of average prudence would take" in the situation above described. We think that the rule furnished no logical basis for such a finding. If any language inconsistent with this conclusion was used by the court upon the former transfer of this case, it must be limited accordingly.
In further support of their motion the plaintiffs contend that the argument made by counsel for the plaintiff Florence A. Smith in which he urged the jury to assess her damages with feelings of "humanity and sympathy" was not really prejudicial, and that, even *Page 439 though it were, still it could affect no more than the issue of damages in her case. These contentions are unsound.
The cases, although technically separate actions, were tried together. Identical issues of fact were involved, the same charges of negligence were made by each plaintiff and in each case the defendant made the same defence. In almost every instance the testimony of the witnesses, except such as related to damages, bore upon each case in almost equal degree and the plaintiffs were repeatedly referred to collectively in the charge. From these similarities the jury must have understood that the cases were practically identical. Under these circumstances it could not be found that an argument made in one case for the assessment of damages with feelings of "humanity and sympathy" would not affect the jury in its consideration of the other. Each plaintiff took the chance of misconduct on the part of the other amounting to cause for a mistrial.
That the argument amounted to cause for a mistrial is not open to doubt. Its highly inflammatory and prejudicial nature is too patent to call for demonstration.
Offending counsel's withdrawal of the argument presented an issue of fact for the Presiding Justice as to whether or not the prejudice thereby engendered was cured (Olena v. Company, 82 N.H. 408, 414, 415), and this issue has not been passed upon. We see no reason for remanding the cases for a finding on this issue, however, because the record does not disclose any circumstances from which a finding of cure could properly be made. Bruce v. Company, 87 N.H. 462, 464.
The verdicts must, therefore, be set aside, and set aside not only on the issue of damages but also on the issue of liability. The argument, although directed only to the issue of damages, was so potent to excite compassion and prejudice that it could not be found to have poisoned the minds of the jury on that issue alone.
The other contentions advanced by the plaintiffs in support of this motion were fully considered in the original opinion and do not call for further discussion.
Former result affirmed.
The others concurred.