Collette v. Boston & M. R. R.

• Decision Date: 03 January 1928
• Docket Number: No. 2129.,2129.
• Citation: 140 A. 176
• Parties: COLLETTE v. BOSTON & M. R. R. SCHREITERER v. SAME.
• Court: New Hampshire Supreme Court

140 A. 176

COLLETTE

v. BOSTON & M. R. R.

SCHREITERER

v. SAME.

No. 2129.

Supreme Court of New Hampshire. Hillsborough.

Jan. 3, 1928.

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

Actions by Isabel L. Collette, by next friend, and by Hazel Schreiterer, administratrix, against the Boston & Maine Railroad for negligence in a collision between a train of defendant and an automobile on a grade crossing in Carroll, in which plaintiff in the first action and plaintiff's intestate in the second were riding. Joint trial by jury, and verdicts for the plaintiffs. Actions transferred on exceptions to the denial of motions for nonsuits and directed verdicts and on other exceptions. Judgments for defendant.

Wason & Moran and John R. Spring, all of Nashua, for plaintiffs.

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

ALLEN, J. The Bretton Woods road, on which the accident occurred, runs northerly from its intersection at right angles with a highway called the Portland road. The railroad runs generally parallel with the Portland road, and crosses the Bretton Woods road at a distance of 52 feet from its southerly rail to the northerly line of the Portland road. For such distance the Bretton Woods road is nearly level. On the east side of the Bretton Woods road, and near its intersection with the Portland road, was a sign on a post and bearing the words "Speed Limit. 15 miles Straightway. 10 miles on Curves. Slow Down at Crossing." Below the sign was another one with the single word "Caution" on it. The first sign was about on a level with the observation of a person in an automobile, and directly faced the driver as he entered the Bretton Woods road after coming from the west on the Portland road. On the north side of the crossing, and on the west side of the road, a post carried a sign headed "Private Crossing," and with a warning in smaller letters following that persons used the crossing at their peril, and must not rely upon train signals. The sign was from 6 to 8 feet high, faced travel from the south, and the heading could be plainly read for a distance of several feet south of the crossing. At a point 35 feet south of the crossing the track could be seen towards the east for about 1,400 feet. From the Portland road the view of the track to the east of the crossing was obscured, and the view of the situation on the Bretton Woods road was not clear from the Portland road until their intersection was nearly reached.

The automobile, after proceeding easterly on the Portland road, turned to the left as it entered the Bretton Woods road. In making the turn, its speed had been slowed to wait until a car from the other direction had passed. On the Bretton Woods road there were no other cars south of the crossing at the time. Beyond the crossing a car on the westerly side of the road was coming, and came to a stop. The roadway was 20 feet wide at the south side of the crossing, and increased in width to its southerly end, where the width was over 70 feet.

The train came from the east, and its speed was from 15 to 18 miles an hour until after the emergency brakes were applied. It was the first time the driver of the automobile and those with him had been in the White Mountains, and he testified that until the collision he was unaware of the crossing; that he proceeded on the Bretton Woods road at not over 5 miles an hour until he increased his speed when he thought the car beyond the track had stopped to let him pass it; that, after entering the Bretton Woods road, he first saw this car, and then watched it all the time until the collision; and that his car was struck by the train near the front right wheel just as his speed was increasing, and at about the center of the crossing. At a speed of 5 miles an hour the automobile could have been stopped in 4 or 5 feet. The overhang of the train was about 18 inches. The accident occurred on a clear day late in August an hour or two before sunset.

One ground of the defendant's alleged negligence is that the crossing was insufficiently protected with warning signs. It is claimed that, if the crossing was on a highway, there should have been a cross-arm sign such as is generally found at highway crossings, and that, if the road was not a highway, even then the warning signs were inadequate to protect the travel which the defendant knew passed over the crossing.

This ground of negligence cannot sustain the verdict, unless evidence of the causal effect of the careless act or omission to produce the injurious result is shown. If the evidence is conceded to be sufficient to find lack of care in such respect, yet, unless the evidence also tends to show the force of the carelessness in producing the injury, the claim must fail (McGill v. Maine & N. H. Granite Co., 70 N. H. 125, 129, 46 A. 684, 85 Am. St. Rep. 618; Bennett v. Odell Mfg. Co., 76 N. H. 810, 80 A. 642), and a finding that an ordinary cross-arm warning sign or some more prominent signs than there were would have been seen and heeded with action averting the collision must be a reasonable inference from the evidence.

While the relation between cause and effect need not be established with absolute certainty (Upton v. Conway Lumber Co., 81 N. H. 489, 492, 128 A. 802), yet if a cause is conceded or conclusively proved, then to find another cause as to which the probabilities are equal is conjecture. Boucher v. Larochelle, 74 N. H. 433, 68 A. 870, 15 L. R. A. (N. S.) 416. And, while inferences within the limits of reason are of fact, the question whether a given conclusion is within such limits is one of law. The determination of the border line between conjectural and reasonable inferences usually presents a problem difficult of application to the facts of a concrete case. Inferences of the causal connection between known antecedent facts and known subsequent facts are in general based on stronger probabilities than inferences connecting assumed prior conditions with assumed subsequent conditions. The conclusion of what would have happened under a situation differing from the actual one is ordinarily more conjectural than the conclusion whether what did happen is due to the antecedent facts shown. By reason of the special circumstances and features usually attending a given set of facts, authority and precedent cannot be of much aid or value. The sufficiency of the evidence on any issue must from the nature of the question be determined by general principles of reason and logic in application to the evidence, and rules of law are of little, if any, guide. In a large way, each case must be judged on its own merits.

One issue was the public or private character of the road where the crossing was. If the crossing was on a highway, and if it may be assumed that the cross-arm sign in general use would have been prescribed by the Public Service Commission (P. L. c. 249, § 14), its location on either side of the road and on either side of the crossing would appear to" have been a full compliance with the statute. And, if the crossing was on a private road, the usual highway sign would clearly constitute reasonable warning facilities for this crossing when a train approached it at no greater speed than 15 to 18 miles an hour, and when, as hereafter appears, both a customary highway whistle at the statutory distance for highway. crossings and a station whistle at about 200 feet from the crossing were blown, and with the view there was of the track in the direction from which the train came. The situation differs from that in the case of Collins v. Hustis, 79 N. H. 446, 111 A. 286, where the speed of the train was at least three times as great as the speed here.

In Folsom v. Railroad, 68 N. H. 454, 38 A. 209, negligence in not having a flagman at a crossing in the compact part of Manchester over which trains ran at a speed of from 35 to 40 miles an hour was conceded, and hence called for and received no consideration. And in Gage v. Railroad, 77 N. H. 289, 90 A. 855, L. R. A. 1915A, 363, what is said about a possible need of lights is only dictum, since under the facts no lights were needed. But, if there may be crossings or movements of trains over them calling for more than the statutory requirements,...