Huntress v. Boston & M. R. R.
Decision Date | 30 June 1890 |
Citation | 66 N.H. 185,34 A. 154 |
Parties | HUNTRESS v. BOSTON & M. R. R. |
Court | New Hampshire Supreme Court |
Action by Huntress against the Boston & Maine Railroad. Verdict for plaintiff. Judgment on the verdict.
J. W. Emery and S. W. Emery, for plaintiff.
Frink & Batchelder, for defendants.
In the afternoon of May 19, 1887, the plaintiff's wife, M., in a carriage with her mother, on a highway crossed by the defendants' railroad at grade, attempted to cross the railroad in front of a train that was moving at a speed of from 35 to 40 miles an hour. There was no gate or flagman, but there were "warning signs," such as are required by Laws 1885, c. 98, §§ 1-3. The railroad was straight for a mile or more in the direction from which the train was coming. On the highway where M. was driving, from the nearest rail to a point 110 feet from it, there was an unobstructed view of the railroad for a long distance. At the whistling post, 80 rods from the crossing, the whistles required by law were given, and the bell was rung constantly from the post to the crossing. The horse was kind and gentle, and was driven upon the crossing without stopping. The carriage was struck by the locomotive, and M. and her mother were killed. The fireman, being engaged in putting coal in the firebox, did not see the horse and carriage until it was too late to slacken the speed of the train. The engineer, at his post, looking ahead on the right side of the engine, did not see the horse and carriage approaching the track on the left side until notified by the fireman. Assuming that there was no fault in the engineer or fireman, the question is whether it could properly be found that the collision was caused by want of due care on the part of the defendants, with no contributory want of due care on the part of M.
Improvement Co. v. Stead, 95 U. S. 161, 164, 165.
Many common facts and prevalent conditions, amounting to general rules, within the ordinary experience or observation of jurors, or capable of being ascertained by reasoning, may be adopted by them as grounds of decision in cases not shown to be exceptions to such rules. "If it be merely a presumption of fact, it is nevertheless a presumption drawn from the common experience of mankind, which the court were well warranted in calling the attention of the jury to; and it is a presumption which the jury would inevitably have made, whether the court had referred to it or not." State v. Pike, 49 N. H. 399, 408, 444. ...
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