Batchelder v. Boston & M. R. R.

• Decision Date: 08 April 1904
• Citation: 72 N.H. 528,57 A. 926
• Parties: BATCHELDER v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

57 A. 926

72 N.H. 528

BATCHELDER

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

April 8, 1904.

Transferred from Superior Court.

Case for injuries by Hattie B. Batchelder against the Boston & Maine Railroad. A nonsuit was ordered at the close of plaintiffs evidence, subject to exception, and the case was transferred to the Supreme Court. Exception overruled.

The evidence tended to prove the following facts: The plaintiff was struck by the defendants' train, while walking on the track between West Andover and Potter Place, at about 5 o'clock in the morning of December 6, 1901. The country is sparsely settled, but the railroad track is habitually used for such travel as there is between the two places mentioned. The plaintiff had for some time been accustomed to walk over the track at about the same time in the morning, and knew that a train which ran at a high rate of speed was due at that time. She was in the habit of relying upon the whistle for the West Andover crossing and the roar of the train to warn her of its approach; but on the morning of the accident the whistle was not sounded, and she neither saw nor heard the train until her attention was attracted by the locomotive headlight, when she made an unsuccessful attempt to get off the track. She was about 2.600 feet from West Andover when struck, and could have seen the train when it was 3,900 feet away. She looked for it when she stepped upon the track, and two or three times afterward.

Charles F. Flanders and Thomas H. Madigan, Jr., for plaintiff.

Streeter & Hollis, for defendants.

YOUNG, J. The plaintiff cannot complain of the defendants' failure to perform the duties imposed on them by section 6, c. 159, p. 517, Pub. St. 1901, for they were imposed on the defendants for the benefit of travelers on the highway, and not for the benefit of persons traveling on their right of way. Hill t. Railroad, 67 N. H. 449, 32 Atl. 766; Casista v. Railroad, 69 N. H. 649, 45 Atl. 712; Smith v. Railroad, 70 N. H. 53, 83, 47 Atl. 200, 85 Am. St. Rep. 596; Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Roden v. Railroad, 133 Ill. 72, 24 N. E. 425, 23 Am. St. Rep. 585. When the plaintiff was injured she was either a licensee or a trespasser; that is, she was either rightfully or wrongfully using the defendants' right of way for her private business. Assuming that she was rightfully there (the view most favorable for her), and that the defendants ought to have known of her presence, she cannot recover.

It is the duty of every one to use ordinary care to avoid injuring not only those with whom he knows, but also those with whom he ought to know, his business will bring him in contact. Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159,...