Calley v. Boston & Me. R. R.

• Decision Date: 25 June 1943
• Citation: 33 A.2d 227
• Parties: CALLEY v. BOSTON & MAINE R. R. and nine other titles.
• Court: New Hampshire Supreme Court

33 A.2d 227

CALLEY

v.BOSTON & MAINE R. R. and nine other titles.

Supreme Court of New Hampshire.

June 1, 1943.

Rehearing Denied June 25, 1943.

COPYRIGHT MATERIAL OMITTED.

Transferred from Superior Court, Merrimack County; Young, Judge.

Actions by Florence Calley, by her mother and next friend, by Ella Calley, by Roselle MacDonald, by her father and next friend, by Roselle MacDonald, Sr., by Daniel F. MacDonald, by Louise Pease, by her husband and next friend, and by Hamilton Dolby, by his next friend, against the Boston & Maine Railroad, and by Herbert L. Young, for himself and as father and next friend of Dorothy Young, and by Allen M. Atwood, husband and next friend of Dorothy S. Atwood, against Roselle MacDonald, for damages sustained when an automobile driven by defendant MacDonald skidded through the railing of a highway bridge over defendant railroad's tracks. Verdicts for all plaintiffs except Roselle MacDonald against defendant railroad, verdict for defendant railroad in Roselle MacDonald's action, and verdicts for plaintiffs in actions against Roselle MacDonald. Transferred to the Supreme Court on defendants' exceptions.

Judgments for defendant in the actions by Daniel F. MacDonald and Roselle MacDonald by her father and next friend, judgments on the verdicts in the actions against Roselle MacDonald, and new trials in the other actions.

Actions, to recover damages alleged to have been sustained on February 7, 1940, when an automobile driven by Roselle MacDonald skidded over the curb and through the railing of a highway bridge maintained by the defendant railroad over its tracks in the town of Andover. The cases were tried together by jury with verdicts in the actions against the railroad in favor of all plaintiffs except Roselle MacDonald. In her action there was a verdict for the defendant. There were verdicts for the plaintiffs in the actions against Roselle MacDonald.

Motions for directed verdicts in the defendants' favor were denied subject to exceptions. Other exceptions relate to the admission and exclusion of evidence, to the failure of the court to withdraw certain issues from the jury, to the allowance of argument, to the charge as given, to the refusal of the court to charge as requested, and to the order of the court requiring the trial at that term of the Pease and Dolby cases.

The occupants of the automobile were students of the Andover high school returning to Andover from a visit to certain points of interest in Concord.

The bridge at which the accident occurred was constructed in 1926 by order of the Public Service Commission on petition of the selectmen of Andover for the relocation of a highway.

Further facts are stated in the opinion. Transferred by Young, C. J.

Murchie & Murchie, of Concord (Alexander Murchie, of Concord orally), for all plaintiffs in actions against Boston & Maine R. R.

Demond, Sulloway, Piper & Jones, of Concord (Carl C. Jones, of Concord, orally), for Boston & Maine R. R.

John M. Stark, Donald G. Matson, and Demond, Sulloway, Piper & Jones, all of Concord (James B. Godfrey, of Concord, orally), for plaintiffs in actions against Roselle MacDonald.

Robert W. Upton and Laurence I. Duncan, both of Concord (Mr. Duncan orally), for defendant Roselle MacDonald.

MARBLE, Justice.

Since the bridge in question was a railroad crossing within the meaning of section 1 of chapter 249 of the Public Laws R.L. c. 299, § 1, it was the duty of the defendant railroad to keep it in a reasonably safe condition for public use. Pierce v. Boston & M. Railroad, 83 N.H. 466, 143 A. 903, and cases cited. How far compliance with a detailed administrative order constitutes a defense in actions of this kind need not be determined, for the order on which the railroad here relies is couched in general terms and merely provides “that the proprietors of the Northern Railroad and the proprietors of the Boston & Maine Railroad, as lessee of the Northern Railroad, shall construct a bridge over the tracks of the Northern Railroad at this point which shall be safe and suitable for highway travel over it.” 10 N. H. P. S. C. 487, 488.

It was not the original intention of the Commission, acting on the petition of the town for the relocation of the highway, to make any order whatever relating to the construction of the bridge. The chairman of the Commission, answering a letter received from the law department of the railroad, wrote on December 29, 1925, as follows: “We also notice that you refer to the commission making an order directed against the proprietors of the Northern Railroad. We had not planned to make any order in this case, provided the railroad was willing to go along voluntarily and construct this bridge without an order.”

Apparently, the Commission, in approving the working plans of the bridge, was not particularly concerned with the type of curb or railing erected, since in the same letter the chairman declared: “As previously stated to you, so long as the railroad constructs a bridge which is safe and adequate in width and dimension to properly accommodate the travel of the highway, and is not constructed in such a way as to obstruct the view to the highway travel approaching the bridge, the commission would not be critical as to the design of the bridge and the material entering into its construction.”

Certain alterations in the plans were suggested by the bridge engineer of the State Highway Department, but none of these suggested changes related to the curb or railing. No formal written approval of the plans was ever entered on the records of the Commission. The informal preliminary approval (accorded in point of fact by the Highway Department rather than by the Commission), followed by a formal and final order merely requiring the railroad to construct a bridge “which shall be safe and suitable,” did not, in our opinion, relieve the railroad from liability for negligent construction. See McGettigan v. New York Cent. Railroad Co., 268 N.Y. 66, 196 N.E. 745, 99 A.L.R. 283. See, also, Hayes v. New England, etc. Company, 86 N.H. 486, 174 A. 49. Cases on the subject are collected in 49 Harv. Law Rev. 843.

The case of Cozzi v. Hooksett, 84 N.H. 530, 153 A. 317, 155 A. 41, on which the railroad relies, is inapplicable. The act there construed, P.L. c. 89, § 2, expressly provides that a standard railing erected by a town “shall be held” to be sufficient if approved by the State Highway Department. The Public Laws, effective at the time of the accident, contain no provision immunizing railroads from liability for faulty construction in cases where the construction has received Commission approval.

The bridge was 129 feet in length and 27 feet in width. The railing or “open fence” was designed “just to indicate the side of the bridge” and to “stand up against” the wind. The curb comprised a wooden “guard stick” or “wheel guard”, approximately nine inches high, which ran along the base of the fence, its purpose being “to deflect a wheel that's driven over the bridge parallel to the wheel guard.”

It could be found that the speed of the car when it entered the bridge and commenced to skid was only 20 miles an hour. The car did not go swiftly through the fence but remained suspended for a few seconds (long enough, in fact, for the driver to “turn off the ignition”) before it fell to the ground below. There was expert testimony to the effect that a slightly higher curb would have prevented the accident. The question of the railroad's causal negligence was for the jury.

The bridge engineer for the State Highway Department testified that the bridge conformed to the requirements of the department for a bridge of that kind. He further testified that these requirements were “merely something for a guide” and that a nine-inch curb was the “minimum requirement which in the opinion of these engineers is safe.” He testified without exception that pipe railings were maintained on some wooden bridges and stated, subject to exception, that “step-back curbs” were specified by the American Association of State Highway Officials for bridges with concrete floors, carrying “approximately the same travel as the bridge *** under consideration.” The evidence excepted to was offered “to test the witness's knowledge as to curbs and the element of safety.” What safety required was a question of fact under all the circumstances of the case. Kelsea v. Stratford, 80 N.H. 148, 152, 118 A. 9; Pierce v. Boston & M. Railroad, 83 N.H. 466, 143 A. 903. The evidence was admissible for the purpose stated. Speares Sons Co. v. Boston & M. Railroad, 80 N.H. 243, 244, 116 A. 343; Romani v. Boston & M. Railroad, 81 N.H. 206, 208, 123 A. 233; Bridges v. Great Falls Mfg. Company, 85 N.H. 220, 224, 156 A. 697.

The railroad excepted to the refusal of the court “to withdraw the issue of the claim of negligence on account of the railings in contrast to the curb.” Reliance on the curb alone was not justified as a matter of law. The jury could properly find that a railing designed merely to withstand the force of the wind was inadequate and that a somewhat stouter structure would have prevented the accident. Clark v. Hampton, 83 N.H. 524, 527, 145 A. 265, 61 A.L.R. 1171, and cases cited. The jurors were correctly instructed that the test for them to apply was “whether the curb and railing in question were such as the ordinary man would maintain at that place, taking into consideration the kind and amount of travel over the bridge or crossing.” See Richmond v. Bethlehem, 79 N.H. 78, 80, 104 A. 773; Kelsea v. Stratford, 80 N.H. 148, 152, 118 A. 9.

The railroad, seeking to apply to the situation the rule announced in Shea v. Boston & M. Railroad, 88 N.H. 462, 191 A. 650, requested the court to charge that if the bridge when built was reasonably adequate, the jury could not find the railroad negligent even though subsequent changes in the volume and mode of highway travel had rendered the bridge inadequate. The principle...