Bancroft v. Boston & M. R. R.

• Decision Date: 28 July 1893
• Citation: 67 N.H. 466,30 A. 409
• Parties: BANCROFT v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

30 A. 409

67 N.H. 466

BANCROFT

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

July 28, 1893.

Case reserved from Hillsborough county.

Action by Carrie A. Bancroft, administratrix of Ebenezer Bancroft, deceased, against the Boston & Maine Railroad. There was a verdict for plaintiff. Case reserved. Judgment was rendered for defendant.

H. B. Atherton, for plaintiff.

C. H. Burns and C. J. Hamblett, for defendant.

CLARK, J. February 4, 1891, Bancroft received injuries, which caused his death six days afterwards, while riding on a switching engine of the defendant, which came in collision with a baker's cart at the Walnut street crossing in Nashua. He was about his ordinary work at the time. The defendant had no gate or flagman at the crossing, and freight cars were commonly kept standing, and at the time of the accident were standing, on a side track, in such position as to hide the engine from the view of persons in the street and approaching the crossing from the west This was the negligence complained of. Bancroft was in the defendant's service as a brakeman and car coupler, and had been for three years a member of the gang operating the switcher, consisting of an engineer, fireman, conductor, and two other brakemen. In this employment he had occasion to pass over the Walnut street crossing 10 or 12 times daily, and assisted in putting freight cars on and taking them from the side track nearly every day. He was a good workman, and kept track of the cars to be handled, and knew just where they stood. The side track was a storage place for freight cars not in use or waiting to be unloaded, and had been used for that purpose during the time Bancroft had been in the defendant's employment and there had never been a flagman or gate at the crossing. There were steps on the front and rear of the switching engine, on which the men were in the habit of standing when riding. They were not required to ride there, but were at liberty to ride in the cab, or on the steps, as they chose. At the time the accident occurred, Bancroft was riding on the step, in front of the engine, and received his injuries in the collision with the baker's cart. The defendant moved for a nonsuit, and for a verdict, on the ground that Bancroft, with full knowledge of the situation and danger, assumed the risk of riding in front of the engine.

It is apparent that Bancroft was familiar with the location and situation of the crossing, the side track and freight cars upon it, and the extent to which the view was obstructed by them. During three years of continuous service, he had passed over the crossing several times daily, and had been accustomed to assist almost daily in putting cars upon the side track, and taking them from it it is to be assumed that he knew the situation of the freight cars at the time of the accident, from the fact that it appears that his attention to his work and his observation were such that he could at any time tell the location of the...