Bonnin v. Boston & M. R. R.

• Decision Date: 04 May 1915
• Citation: 94 A. 196,77 N.H. 559
• Parties: BONNIN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

94 A. 196

77 N.H. 559

BONNIN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

May 4, 1915.

Transferred from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by Francis Bonnin against the Boston & Maine Railroad. Nonsuit granted at close of plaintiff's evidence, and cause transferred from the superior court on plaintiff's exception. Exception overruled.

Case, for negligence. Trial by jury. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was granted, subject to exception. If the exception is sustained, there is to be judgment for the plaintiff for $3,000. If it is not sustained, the case is to be entered: "Neither party; no further action for the same cause."

April 3, 1912, the plaintiff was struck and injured by a train while attempting to cross the tracks south of the Manchester station. He alleges that while in the exercise of ordinary care he was negligently run upon and injured, that the defendant's rails were allowed to become slippery and greasy, and that this condition of the rails, together with the immoderate speed of the train, caused his injury. The declaration also contains a count under the Employers' Liability and Workmen's Compensation Act (Laws 1911, c. 163.)

The plaintiff had been employed by the defendant as a car cleaner for about two years. His evidence tended to prove that just before the accident he was sitting with one Stone in a car on a track below the Manchester station. Stone called the plaintiff's attention to the train from Portsmouth coming in on track No. 3, the cars of which it was their duty to clean, and they went out of the car, Stone walking ahead. When the plaintiff was in the middle of the Lawrence platform, about 27 feet east of track No. 3, he saw the Portsmouth train coming in at the crossover about 200 feet south of the place of accident. He did not know the speed of the train, but thought he had plenty of time to cross in front of it, as he had done many times before, when at the same place he had seen the same train coming in upon the same track from the same point in the yard. He had never seen the train come into the station faster than 6 or 7 miles an hour, and he relied on the usual speed. It must have been moving faster on the day of the accident, although the engineer testified that he was running at a speed of 5 or 6 miles an hour. The plaintiff was walking at the rate of about 2 miles an hour as he approached track No. 3. When he stepped upon track No. 3, the fireman on the locomotive shouted, "Whoa." The plaintiff looked up, saw the locomotive within 15 feet of him, and, not being able to get off the track, grabbed the pilot of the locomotive and was dragged under it, thus receiving the injuries for which he seeks to recover. As he went from the Lawrence platform to track No. 3 he did not look up to see where the train was, paid no attention to it, and neither saw nor heard it until after he had stepped upon the track. The locomotive bell was ringing, but he did not hear it.

Osgood & Osgood, of Manchester, for plaintiff. Branch & Branch, of Manchester, for defendant.

PLUMMER, J. In an action for negligence at common law, the burden is upon the plaintiff to prove that he was in the exercise of due care at the time of the accident. Under section 2, c. 163, Laws of 1911. the burden of proof is not placed upon the plaintiff; but, if the preponderance of the evidence shows want of due care on his part, he cannot recover. So, whether the plaintiff's action comes within the scope of the statute or under the common law, if it appears by the weight or the preponderance of the evidence that his negligence contributed to cause the accident, he cannot prevail. The plaintiff was a healthy man in the full possession of all his faculties. "There is nothing to relieve the plaintiff from the fundamental rule in the law of negligence that freedom from fault contributing to the injury on the part of the person injured is essential to a recovery for the injury." Chabott v. Railway, 77 N. H. 133, 135, 88 Atl. 995, 996.

The plaintiff saw the Portsmouth train coming into the station on track 3, about 200 feet south of the place of the accident, when he was in the middle of the Lawrence platform, 27 feet east of track 3. Prom that time until he stepped onto track 3 and the train was upon him he paid no attention to it whatever; he neither saw nor heard it, although the bell was ringing. The direction that he went in walking toward track 3 caused him to face the incoming train to some extent. By looking he could have seen the train and followed its course as it approached him without turning his head. The plaintiff states that he gave the train no attention, because he thought he had ample time to cross the track ahead of the train; that many times before, when he had been in the middle of the Lawrence platform, he had seen this train...