Carleton v. Boston & M. R. R.

• Decision Date: 02 March 1926
• Citation: 132 A. 680
• Parties: CARLETON v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

132 A. 680

CARLETON

v. BOSTON & M. R. R.

Supreme Court of New Hampshire Hillsborough.

March 2, 1926.

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

Action by Daniel G. Carleton against the Boston & Maine Railroad. Verdict for plaintiff. Case transferred upon defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict. Judgment for the defendant.

Doyle & Doyle and Paul J. Doyle, all of Nashua, for plaintiff.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

PEASLEE, C. J. The plaintiff was the operator of an electric street railway car, and in the course of his duties had occasion to cross the defendant's tracks at East Ilollis street in Nashua, near the southerly end of the Union Station. There are six lines of railroad track crossing the street at this point, the two westerly ones being the main lines north and south. Just easterly of these, a spur track terminates at the north side of the street; and at the time in question it was occupied by one or more cars which somewhat obscured the view of a train approaching from the north.

The plaintiff approached from the east. A freight train was passing northerly on the north-bound main track, which is the second one from the west. The crossing gates were down, but were raised as soon as the freight train passed. The plaintiff had stopped his car, and when the gates were raised he glanced north and south and made no further attempt to ascertain whether a train might be approaching. He was struck while on the most westerly track by a train moving south. If he had looked as he was passing the cars on. the spur track, he could have seen the approaching train, or the light thrown ahead from the engine, in season to have stopped and avoided the accident.

It was admitted that the gateman failed to exercise due care in the operation of the gates, and the question which has been argued is whether the plaintiff's conduct was such that a recovery should be denied as matter of law.

"In all cases * * * when a street railway crosses a steam railroad at grade, every driver of a car upon the street railway shall, when approaching the point of intersection, stop his car not more than seventy-five feet and not less than twenty feet from the crossing, and before attempting to cross carefully examine for approaching trains on the steam railroad, and shall not proceed to cross until it is ascertained that no trains are approaching, and that the street railway car may cross with safety." Laws 1921, c. 114, § 1.

If it be conceded for the purposes of the argument that the plaintiff's conduct in relying upon the implied invitation of the gateman to cross supplemented by an observation of the situation before entering upon the tracks, might be found to be the care of an average person in the same situation, the question remains whether the statute does not impose upon one so situated a further duty which the plaintiff did not perform.

The defendant contends that the true construction of the statute is that a duty is put upon the operator of the street car to know beyond peradventure that the crossing can be made in safety. The argument is that he is, in effect, an insurer of that fact, and that no combination of fortuitous circumstances can excuse him.

The authorities upon the construction of such a statute are conflicting. It has been held in several states that it does not place the operator of the train or car in the position of an insurer, or one who takes the chances, but merely imposes upon him a duty to exercise the highest degree of care that can reasonably be taken under the circumstances. Philip v. Heraty, 97 N. W. 963, 100 N. W. 186, 135 Mich. 446; Coulter v. Railroad, 106 N. E. 258, 264 Ill. 414; Southern Railway Co. v. Bryan, 28 So. 445, 125 Ala. 297; s. c, 37 So. 702, 141 Ala. 517; Billingsley v. Railroad, 58 So. 433, 177 Ala. 342. In one jurisdiction the rule contended for by the defendant was adopted, and it was held that a person injured under these circumstances could not recover. Frese v. Railroad, 235 S. W. 97, 290 Mo. 501. The matter is there disposed of in a single sentence and without discussion of the principles involved. The conclusion was dissented from by a minority of the court. The case involved an accident which happened in the state of Illinois, and the interpretation of an Illinois statute by a Missouri court. That court treated the question as one of general law, and ignored the fact that in an earlier case the Illinois court had come to the opposite conclusion in construing a similar piece of legislation. Coulter v. Railroad, supra.

The contention that the decision of the Missouri court upon this question was approved and affirmed when the case came before the Supreme Court of the United States cannot be sustained. The situation was as follows: The suit was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and the party injured was an engineer. Conceding that he violated the statute, it was claimed that negligence of the fireman contributed to the accident, and that therefore the plaintiff could recover under the provision that the contributory negligence of the injured employee is not a full defense, but only goes to reduce the damages. Act Cong. April 22, 1908, c. 149, § 3, 35 Stat. 66 (U. S. Comp. St. § 8659). This was the question taken to the United States court upon certiorari. The interpretation of the Illinois statute by the Missouri court was not the decision of a federal question. It was a ruling upon a matter which could not be taken to the federal court, and the conclusion of the state court upon it was binding in the federal court. It was so treated there. Mr. Justice Holmes states briefly the conclusion of the state court upon this point, and goes on to treat the case upon the basis that such is the law. It was the law for this case, and so far as that court had the matter to deal with. But there is in the final opinion in the case no discussion of this point and no intimation that the court did or did not approve of the views of the state court upon the question as to which the decision of the state court was final. Frese v. Railroad, 44 S. Ct. 1, 263 U. S. L 68 L. Ed. 131.

The defendant also relies upon decisions wherein certain provisions of the federal Employers' Liability Law are held to impose an absolute liability for certain defective appliances without regard to whether the employer was at fault in any respect, or responsible in any way save that it made use of the appliance. St. Louis, etc., Railroad v. Taylor, 28 S. Ct. 616, 210 U. S. 281, 52 L. Ed. 1061; Chicago, etc., Railroad v. United States, 31 S. Ct. 612, 220 U. S. 559, 55 L. Ed. 582; Delk v. Railroad, 31 S. Ct. 617, 220 U. S. 580, 55 L. Ed. 590. The statute under consideration in those cases is of a class which first appeared in England in 1897. 60 & 61...