If there was no evidence legally tending to prove that the defendants agreed with the plaintiff, as a part of the contract, that they would be responsible for all injuries the workmen might suffer occasioned by the plaintiff's negligence, the court committed no error in saying to the jury that there was nothing in the case to warrant such a finding. It is elementary that a finding of fact must be predicate upon some evidence. An examination of the testimony bearing on this branch of the case fails to disclose any evidence of such an agreement. John S. Shepard's testimony indicates plainly that he did not intend to include in the risks assumed by the defendants the plaintiff's liability to his men for injuries they might receive while *Page 55 engaged on the work; nor did Seth B. Shepard in his testimony refer to that subject. Both witnesses testified that they talked over the matter of risks they were to be responsible for in detail with the plaintiff, and both say, substantially, the risks referred to such injuries as the public might suffer by reason of the moving of the building along the street or highway. The testimony has no reasonable tendency to prove that the defendants intended to assume any other or greater liability.
When it is said that the defendants were to assume all the risks incident to the work, a question of the interpretation of language arises; and this is in effect a question of intention. What did the witnesses intend by the language used? This question is not solved by giving an arbitrary or unreasonable meaning to verbal testimony. In finding what a witness means it is not permissible to reach a result which reasonable men could not entertain. Upon such a question of fact, the finding or verdict must appear to be based upon some reasonable understanding of the meaning of language as understood and sanctioned by the court. A bare scintilla of evidence is not sufficient to support unreasonable verdicts. However it may have been in ancient times, a mere spark of evidence does not authorize a finding of fact, contrary to what is admittedly reasonable. "Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but decisions have established a more reasonable rule, to wit, that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed." Paine v. Railway, 58 N.H. 611, 614. "We do not mean to say that a mere scintilla of evidence would suffice to sustain an award; but in the absence of any evidence of prejudice, partially, or corruption, or a manifest mistake on the part of the referee, the award must stand if there appears to have been any substantial evidence upon which the referee could properly proceed to find an award in favor of the party producing it, upon whom the burden of proof was imposed." Free v. Buckingham, 59 N.H. 219, 224.
In the present state of the law upon this subject, extended discussion of the decisions is unnecessary. "In the absence of some evidence as to the fact, a judicial trial does not substitute an unfounded guess or conjecture for the legal proof which the law requires." Deschenes v. Railroad,69 N.H. 285, 291. And "some evidence" means evidence having a logical and reasonable tendency to prove the fact. Whether it has *Page 56 that tendency is a preliminary question for the court. This is not the same as saying that the court may substitute its judgment for the judgment of the jury upon the weight of the evidence or the inferences to be drawn from it. If the court can see that reasonable men, considering the evidence as jurors are bound to consider it, may find that it proves the existence of a material fact, the court has performed its preliminary duty and must then submit the evidence to the jury; on the other hand, if it appears that reasonable men upon the evidence could only reach that conclusion by conjecture, chance, or doubtful and unsatisfactory speculation, it is equally the duty of the court to withdraw or exclude the evidence from the consideration of the jury. See Hovey v. Brown, 59 N.H. 114; Hardy v. Railroad, 68 N.H. 523, 536; Horan v. Byrnes, 70 N.H. 531, 533; White v. Dakin, 70 N.H. 632; Dame v. Car Works, 71 N.H. 407; Cohn v. Saidel,71 N.H. 558, 568; Stevens v. Stevens, 72 N.H. 360; Reynolds v. Fibre Co.,73 N.H. 126; Miller v. Railroad, 73 N.H. 330, 333; Wright v. Railroad,74 N.H. 128; 2 Thomp. Trials, ss. 2246, et seq.
The claim that from the defendants' evidence it could be reasonably and properly found that they agreed to assume the risk of the negligence and want of skill of the plaintiff's employees in moving the building — that is, that they would release and waive all claims they might otherwise have against the plaintiff for damage to the building caused by the unskillful and negligent conduct of the men engaged in moving it — cannot be sustained. The language of the witnesses does not require so broad a construction. The assumption of "all risk," when read in connection with the subject under discussion by the parties at the time of the contract, evidently related to the liability to the public for damages occasioned by moving the building. And this construction of the language of the witnesses is strengthened materially by a consideration of the fact that it is extremely unusual, if not quite absurd, for a man, when employing a contractor to do work involving peculiar knowledge and skill, like the moving of large buildings for considerable distances, to agree to be satisfied with a bad result due to the fault of the contractor or his employees. Whether such a contract would be legally binding is a question that need not be considered; the point of our observation is, that if the parties intend to make such a peculiar contract it would be natural to except that they would use apt language to convey their meaning, and that when called upon to testify as to its terms, they would not leave their meaning to be inferred from ambiguous and doubtful phrases. One important part of an agreement by A to move a building for B is that A will do the work in a reasonably careful and prudent manner; B is entitled to the best result of *Page 57 the undertaking which ordinary care and prudence on the part of A can accomplish. Presumably, he employs A in order to have the benefit of his skill, but if he does not, — if he waives his ordinary right to the skillful performance of the work, — the evidence of such an unusual course of dealing should be something more than ambiguous language from which it is as reasonable to infer the non-existence of such an understanding as its existence. "It is the very great improbability that the parties intended a result so absurd that leads to the conclusion, in the absence of evidence to the contrary, that they had no such intention." Kendall v. Green,67 N.H. 557, 563; Opinion of the Justices, 72 N.H. 605, 607, 608; Rollins Engine Co. v. Forge Co., 73 N.H. 92, 96.
As applied to this case the question is, whether it could be reasonably and logically found from the defendants' evidence that it was agreed that in case the building was negligently moved, resulting in material loss to them, they waived their claim against the plaintiff therefor. It is difficult to conceive how reasonable men could reach that conclusion, or how they could say on the evidence that it is more probable than otherwise the parties entered into a contract so unusual, if not absurd. It is a mere conjecture or possibility that they had that intention — not a rational or logical probability. "Upon this point reasonable men could not differ, and but one sustainable verdict could be rendered. Hence it was proper for the court to refuse to submit the question to the jury." Waldron v. Railroad,71 N.H. 362, 364.
The charge of the court with reference to the defendants' assumption of the plaintiff's responsibility to the public was correct. The defendants excepted to a single sentence of the charge on this subject, wherein the court said: "If Theobald never understood that they were relieving him from any responsibility although the Shepard Brothers may have thought they were, — if their minds never met on that proposition, — then the responsibility still rested upon Theobald." The responsibility here referred to evidently means such responsibility as would belong to the plaintiff if no special agreement had been made in regard to it. Taking the charge as a whole, the jury could not have understood from it that, if there was no special agreement as to the risks connected with the work, the plaintiff would be entitled to recover compensation for a risk which was legally chargeable to the defendants, or that he could recover on account of risks for which he was not legally chargeable. If, in the absence of a special agreement, the defendants would ultimately be liable for damages to the public caused by moving the building along the street, as claimed by them (Thomas v. Harrington, 72 N.H. 45), the instruction *Page 58 excepted to did not warrant an inference by the jury that the plaintiff's damages were enhanced thereby.
The fact that before the defendants employed the plaintiff they had let the job to one Davis, who commenced to do the work but finally gave it up, was introductory to the testimony of the plaintiff that Davis "couldn't move the building." For the purpose of contradicting the plaintiff, the defendants offered to show that the reason Davis gave up the work was because he was sick, and they excepted to the refusal of the court to receive this testimony. Davis' sickness, if it was a fact, may have furnished a reason why he did not or could not carry out his contract, but it did not contradict the plaintiff's evidence that he was unable to complete the work. As the plaintiff did not testify why Davis failed to do the work, the proffered evidence was properly excluded as immaterial.
The ruling of the court that certain witnesses were not qualified to give an opinion as to the expense of moving buildings presents no error. The qualification of one to testify as an expert is preliminary fact to be found by the court and is not subject to exception. Jones v. Tucker,41 N.H. 546. Nor was it error the court to find that a certain letter written by the plaintiff to the defendants, offering to make a discount, was intended as an offer of compromise under the circumstances, and to exclude it for that reason. Bartlett v. Hoyt, 33 N.H. 151, 165; Field v. Tenney, 47 N.H. 513, 521; Colburn v. Groton, 66 N.H. 151, 158; Jenness v. Jones, 68 N.H. 475.
The remark of the plaintiff's counsel in argument, that the plaintiff was the only man in the state who could do this work, was justified by the plaintiff's testimony that he knew of no one in the state who did as heavy work as he did.
Exceptions overruled.
All concurred. *Page 59