Bourassa v. Grand Trunk Ry. Co.

• Decision Date: 02 November 1909
• Parties: BOURASSA v. GRAND TRUNK RY. CO.
• Court: New Hampshire Supreme Court

74 A. 590

75 N.H. 359

BOURASSA

v. GRAND TRUNK RY. CO.

Supreme Court of New Hampshire. Coos.

Nov. 2, 1909.

Transferred from Superior Court, Coos County; Pike, Judge.

Action on the case, for negligence, by Damase Bourassa for personal injuries against the Grand Trunk Railway Company. Plaintiff had judgment, and defendant brings exceptions. Exceptions overruled.

Henry F. Hollis, for plaintiff.

Rich & Marble and Drew, Jordan, Shurtleff & Morris, for defendant.

PARSONS, C. J. In support of their motion for a verdict, the defendants do not question the sufficiency of the evidence to authorize a finding of their fault as cause for the injury. The claim is that the plaintiff fails for lack of proof of his care. He was walking upon a branch railroad track, and proceeded for a distance of 220 feet without looking backward to see if a train was approaching, and did not observe the shifting engine which came up behind him until it was too late for him to escape injury. The evidence upon which the plaintiff contends care may be found is that the portion of the track upon which he was walking was, to the knowledge of the defendants, commonly used by many persons as a pathway; that, before entering upon the track, he looked up the track and saw no train; that the distance over which the track was open to observation was such that no train running at a speed reasonable under all the circumstances or usual upon this track, not then in sight, could overtake him before he reached the point where he proposed to leave the track; and that he had reasonable ground for believing, and did believe, that no train would pass over the track at that hour of the day.

Whether the average man walking upon a railroad track under these circumstances would look round before he had traveled 200 feet at three miles per hour, or take other precautions which the plaintiff did not take to ascertain the approach of danger, is a question of fact which was properly submitted to the jury. Stearns v. Railroad, 75 N. H. 40, 71 Atl. 21; Brown v. Railroad, 73 N. H. 508, 64 Atl. 194; Minot v. Railroad, 73 N. H. 317, 61 Atl. 509; Davis v. Railroad, 70 N. H. 519, 49 Atl. 108; Mitchell v. Railroad, 68 N. H. 96, 34 Atl. 674; State v. Railroad, 52 N. H. 528. How often safety would require one in the path of a possible train to look behind him to protect himself would plainly depend upon all facts of the particular case; and the answer being an inference to be drawn from facts proved, must be returned by the triers of fact. It cannot be determined as a rule of law without holding that the fact of collision between a person on foot and a railroad train conclusively under all circumstances establishes the negligence of the former. While the defendants contend for this proposition, its principle is so foreign to the law of negligence as administered in this jurisdiction that its discussion is unnecessary. Stearns v. Railroad, supra, 75 N. H. 42, 43, 71 Atl. 21; Gahagan v. Railroad, 70 N. H. 441, 444, 445, 50 Atl. 146, 55 L. R. A. 426; Bass v. Railway, 70 N. H. 170, 46 Atl. 1056; Roberts v. Railroad, 69 N. H. 354, 45 Atl. 94.

The plaintiff was injured while returning from the place of his daily employment and described his usual course of travel, which included walking over the stretch of track upon which he was injured. Subject to exception, he was permitted to testify, in answer to the question, "Did you do anything to see if the cars were coming? I looked every time when I went upon the crossing." Later in his examination he testified: "Eight or ten feet before I took the line I stopped and looked to see if a train was coming." The defendants excepted to the inquiry as to the plaintiff's usual custom, and now argue that the evidence was inadmissible because there was direct evidence that upon the occasion in question the plaintiff did look. Tucker v. Railroad, 73 N. H. 132, 133, 59 Atl. 943, and Minot v. Railroad, 73 N. H. 317, 320, 61 Atl. 509, are relied upon in support of the exception. In the former case it was said in reference to the conduct of the injured party, citing Smith v. Railroad, 70 N. H. 53, 47 Atl. 290, 85 Am. St. Rep. 596: "Upon this question his custom and habit is evidence, and from such evidence, the exercise of care may be found if it does not conclusively appear that in the particular instance such custom was not observed." While in the latter the exclusion of similar evidence was approved, the evidence as to what the plaintiff did as she approached the track being direct and uncontradicted. If in this case it is conceded to have conclusively appeared that the plaintiff looked, the evidence of habit tending to show that he did look was immaterial; and while, after that fact appeared, evidence of habit could properly have been excluded on this issue, its admission upon a point not in controversy could not have harmed the defendants. It was, however, admissible upon another issue in the case raised by the defendants. The plaintiff testified that from his knowledge of the use of the track by the defendants he had no expectation a train would pass during the time lie proposed to use it. The defendants argued that if he looked, as he testified, he could not have entertained this belief. The plaintiff's explanation that he looked as a matter of habit whenever he went upon the track was a competent answer to this argument.

Subject to exception, the jury were instructed as follows: "Then the plaintiff says that they did not ring the bell or blow the whistle. It is true that there is no statutory duty on the part of the defendants to ring the bell or blow the whistle under such circumstances. On...