Brown v. Boston & M. R. R.

• Decision Date: 05 June 1906
• Citation: 73 N.H. 568,64 A. 194
• Court: New Hampshire Supreme Court
• Parties: BROWN v. BOSTON & M. R. R.

64 A. 194

73 N.H. 568

BROWN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 5, 1906.

Exceptions from Superior Court; Chamberlin, Judge.

Action by Harry J. Brown, as administrator of the estate of Mary Chandler, deceased, against the Boston & Maine Railroad. At the close of plaintiff's case a nonsuit was ordered, subject to exception, and the case was transferred to the Supreme Court. Exceptions sustained.

The tracks in the yard at East Concord run north and south; the passenger station being located east of the tracks. South of the station and east of the main line is a side track. Seventy-five feet south of the southerly end of the station platform is a frog where the westerly rail of the siding intersects the easterly rail of the main line. About 120 feet south of the frog, and on the east side of the tracks, is a freighthouse, and 260 feet south of the freighthouse is a private crossing, from which a road leads in an easterly direction to the yard of Cyrus R. Robinson. In 1901, a gate was built across the way at the east entrance, but it was seldom closed. The following printed notice was affixed to the gate:

"Extract from Public Statutes of New Hampshire, chapter 266, section 5: If any person who enters upon or crosses a railroad at any private way which is closed by gates or bars neglects to securely close them, he shall forfeit for each offence the sum of ten dollars, and shall be liable for any damage that shall be occasioned by such neglect

"Boston & Maine Railroad. Important Notice. This is a private crossing and the gates or bars must be kept closed.

"Trespassers are forbidden to enter or cross here. Any person using the crossing must close the gates or bars securely, and for failure so to do will be prosecuted to the full extent of the law."

The notice was dated December 1, 1895, and was signed by the defendants' general manager. On March 31, 1904, the cloth upon which the notice was printed had been cut from corner to corner, and the printed matter could not then be read without holding the pieces together. The cut appeared to be an old one, but there was no direct evidence as to when it was made. Miss Chandler was a tall woman about 60 years old, and was very deaf. She was a seamstress by trade, and prior to the accident had been accustomed to go to East Concord to do dressmaking. On those occasions she had passed through the Robinson yard and up the defendants' right of way in going to the station. On the day of the accident she had been employed at the Robinson house, and intended to return home on the mixed train leaving East Concord for the south at 7:48 that evening. About 7:45 by Robinson's clock, which was understood to be right, she left the house for the station, accompanied by Miss Robinson. There was considerable snow on the ground, and the weather was cold and windy. The two women passed out of the yard onto the defendants' right of way and went north toward the station, walking on the main track until they reached a point opposite the freighthouse. They then noticed a train approaching from the north; but it seemed to be a long distance away, and both thought it was the mixed train. Miss Chandler said: "The train is coming." They then crossed over to the side track and into a path at the right of that track. From this point Miss Chandler walked ahead of her companion. When Miss Robinson reached the vicinity of the frog she realized from the noise and speed of the approaching train that it would not stop at the station, and shouted a warning to Miss Chandler, who did not hear her. About this time Miss Chandler called back to Miss Robinson, "We've got time," and pressed forward up the path. Miss Robinson remained where she was. When Miss Chandler was last seen before the accident, she was about 60 feet north of the frog. The engine passed without striking her, but, after the train had gone by, her body was found about 29 feet south of the frog. The first blood stain was found 34 feet south of the southerly end of the station platform. The train was the Montreal express, an hour and 40 minutes late and running from 40 to 50 or more miles an hour. It passed East Concord station that evening at 7:37. The side track and path converge toward the main line as they approach the passenger station. On the day of the accident sleepers piled east of the path and north of the freight house extended nearly to the station platform. Near the southerly end of the platform was a switch. The snow had been shoveled out from around the switch for a distance of 4 or 5 feet, but south of this point it was banked in between the sleepers and the track, thus narrowing the path. A person could not walk in the path for a distance south of the switch without touching cars passing upon the main line, and the accumulation of snow required one walking there to keep in the path. There was a strong suction toward the train as it passed, and it was difficult to retain one's foothold when standing at the distance Miss Robinson was from the main track. Miss Chandler was struck or drawn under the cars by the suction of the train while in this locality.

At the time of the accident the sky was clear and the moon shone brightly. Miss Chandler was dressed in black. From a point on the side track oposite the freighthouse, the view in a northerly direction was unobstructed for a distance of a mile and a half. The train could have been stopped in about 840 feet. With the headlight burning, a person could be seen at or about the track for a distance of 160 feet from the locomotive. The rules of the company required those charged with the running of trains "to approach stations carefully to avoid any risk of accident," and that "the engineman and fireman be on the lookout ahead, when engines or trains are approaching stations," for persons or teams upon or near the track. The engineer and fireman testified that they did not see Miss Chandler or her companion. The engineer further testified that he looked out as he passed the station, but it did not occur to him that he was running within a few minutes of the time of the mixed train, and he kept no more of a lookout that night for persons who might be going to the station to take the mixed train than he would anywhere along the line; that, had his train been scheduled to stop at East Concord station, the warning signals would not have been different from those which were given; and that a person walking up the track could not tell by looking whether the express train or the mixed train was approaching, until it had passed. The record does not state what the fireman was doing as the train passed the station. Eight persons living in the lower part of the village of East Concord testified that at the time of the accident, and for many years prior thereto, it was their practice, and the practice of those living in that section of the town, to go to the passenger station through the Robinson yard and up the tracks, by the route alleged to have been taken by Miss Chandler; that people go that way to the train every day, and practically to every train; and that they had never heard of any objection to this practice on the part of the railroad.

Henry F. Hollis and Harry J. Brown, for plaintiff. Streeter & Hollis, for defendants.

BINGHAM, J. The defendants contend that the provisions of chapter 75, p. 316, Laws 1899, do not require that a notice should be posted to entitle them to the benefits or exemptions there conferred, and that they are relieved from liability in this action, even if no notice was posted. This contention does not require extended consideration if the language used in the act is to be taken as meaning what it says. By section 2, the civil liability of railroads to persons injured "while engaged in any act prohibited by section 1" is limited to damages occasioned by their "willful or gross negligence." Every act described in section 1 is prohibited when notice has been posted forbidding it. Therefore the civil liability of railroads, under section 2, is limited to damages occasioned by their willful or gross negligence only when the person injured is engaged in some act described in section 1 that is forbidden by a posted notice.

The defendants further contend that, if notice is necessary, the notice put in evidence was posted and answered the requirements of the statute. An answer to this is that it does not conclusively appear that this notice was posted at the time of the accident, and that the evidence is such as would warrant a jury in drawing the opposite conclusion. The statutory requisite as to posting is not complied with by showing that a notice was at some time posted upon the defendants' premises, where persons entering thereon would in the exercise of reasonable care see it; but it must further appear that, at the time of the accident, the notice was maintained in such condition that persons for whose benefit it was intended could by the exercise of like care know of it. It may also be added that we do not think the notice put in evidence answers the requirements of chapter 75, p. 316, Laws 1899. The purpose of the Legislature in enacting the statute was to prevent persons from trespassing upon the property of railroads, by rendering them liable to punishment by fine, and to create a right of defense in favor of railroads, as against persons injured while trespassing, not known to our common law, and it provided, as a condition to the existence of the liability and the creation of this right, that railroads should post notices warning persons against trespassing upon their premises. What further information, if any, a notice under this statute should contain, need not now be considered. It is sufficient for this case that we are of the opinion the one put in evidence was not intended, and does not purport, to comply with its provisions. That notice was drafted long before the enactment of chapter 75, for it bears the...