Bly v. Nashua St. Ry. Co.

• Decision Date: 28 July 1893
• Citation: 32 A. 764,67 N.H. 474
• Parties: BLY v. NASHUA ST. RY. CO.
• Court: New Hampshire Supreme Court

32 A. 764

67 N.H. 474

BLY

v. NASHUA ST. RY. CO.

Supreme Court of New Hampshire. Hillsborough.

July 28, 1893.

Exceptions from Hillsborough county.

Action by John H. Bly, administrator, against the Nashua Street-Railway Company for the death of plaintiff's intestate caused by defendants' negligence. There was a verdict for plaintiff, and defendants excepted. Exceptions overruled.

The plaintiff's evidence tended to show that the injury was caused by a car driven by the defendants over their railway, in the compact part of Nashua, faster than at the rate of five miles an hour. The jury were instructed that the defendants were prohibited by Gen. Laws, c. 269, § 14, from running their cars in the compact part of the city at a greater speed than five miles an hour, to which the defendants excepted.

E. S. & H. A. Cutter, R. M. Wallace, and C. H. Burns, for plaintiff.

G. B. French and Burnham, Brown & Warren, for defendants.

CHASE, J. Does the statute providing that "no person shall ride through any street or lane, in the compact part of any town, on a gallop or at a swifter pace than at the rate of five miles an hour" (Gen. Laws, c. 269, § 14), apply to the defendants, whose charter provides that their "railway may be operated by such horse or other motive power as may be authorized by the mayor and aldermen" of Nashua, and that the mayor and aldermen "shall have power to make all such regulations as to rate of speed and the mode of use of said railway as the public safety and convenience may require"? Laws 1885, c. 192, § 5. The statute was enacted in 1792, and has been re-enacted in every general revision of the laws substantially in the same form. Laws 1792, 181; Laws 1830, p. 160, § 5; Rev. St. c. 113, § 13; Comp. St. c. 119, § 15; Gen. St. c. 252, § 14; Gen. Laws, c. 269, 5 14. Street railways were unknown in 1792. The mode of conveyance for persons then in general use was on horseback. A gallop is a favorite gait for such riding. But the mode of conveyance was a mere incident of the mischief to be remedied. This consisted of the danger to which the life and limbs of persons using a street or lane were exposed by the fast riding of others, whatever be the mode of conveyance. The object of the statute was to remedy the mischief; and it was to be accomplished by preventing fast riding generally, not fast riding on horseback in particular. The words used are general: "No person shall ride * * * at a swifter pace," etc. The means of riding may be any that is in use while the statute is in force. See Taylor v. Goodwin, 4 Q. B. Div. 228; Williams v. Ellis, 5 Q. B. Div. 175. The defendants are restrained by this limitation, the same as persons using other modes of conveyance, unless their charter gives them a special privilege. The charter does not give the defendants the exclusive use of the portions of streets occupied by their tracks. If it did, there would be ground for claiming that the legislature intended to exempt them from the limitation, for, in such case, no one could lawfully occupy a position in which he would be exposed to the danger of collision with their cars. The public generally have a right to use those portions of the streets, but in a manner and to an extent modified by the use which the defendants make of them. People may pass across or along the tracks when cars are not passing. The rights of the public and the defendants are in a great measure common. Railroad Co. v. Wakefield, 103 Mass. 261, 263; Concord v. Railroad, 65 N. H. 30, 36, 18 Atl. 87. By the charter, the legislature authorized a new use of streets, which is the source of a new and great danger to other travelers. The driving of cars over steel or iron rails is attended with greater danger to others using the streets than the driving of ordinary vehicles over their uneven surfaces. As cars are heavier than ordinary vehicles, and there is less resistance to their motion, their momentum is not so easily controlled, and causes more serious consequences when they come in collision with objects. Being confined to a fixed track, they cannot be turned aside to avoid collision. They have a tendency to frighten horses, especially when propelled by steam or electricity. The legislature was aware of these facts, and they are competent evidence upon the question of the legislative intent expressed by the charter. They show that there is greater necessity for limiting the speed of cars than for limiting that of ordinary vehicles. In view of them, it is highly improbable that the legislature intended to release the defendants from all restraint as to speed, even temporarily. If the general law does not apply to the defendants, they may drive their cars at any rate of speed, however great, until the mayor and aldermen establish regulations for their government, while a person riding upon horseback or in a carriage cannot drive across, along, or in the vicinity of their tracks at a swifter pace than five miles an hour, without subjecting himself to liability to be fined or imprisoned. Such inequality would be arbitrary and unreasonable.

The speed at which the defendants may drive cars without endangering the safety of other travelers depends somewhat upon the width and character of the streets and the extent and nature of travel over them. Recognizing this fact, and the further fact that the mayor and aldermen, from their knowledge of the streets and travel, are well qualified to judge of the speed allowable within the limits of safety, the legislature delegated to them authority "to make all such regulations as to rate of speed and the mode of use of the railway as the public safety and convenience may require." Com. v. Temple, 14 Gray, 69, 74. This is in accordance with a policy adopted in this state when the first street-railway charter was granted, and which has been generally adhered to in the enactment of later charters. Laws 1864, c. 3030 § 5; Laws 1878, e.,118, § 4; Laws 1881, c. 251, § 4; Laws 1889, c. 178, § 3; Id. c. 218, § 4; Id. c. 241, § 3; Laws 1891, c. 258, § 5: Id. c. 293, § 5; Laws 1893, c. 250, § 4. "This control is given to these municipal officers, not...