Collins v. Hustis
| Decision Date | 25 June 1920 |
| Citation | 111 A. 286 |
| Court | New Hampshire Supreme Court |
| Parties | COLLINS v. HUSTIS. O'BRIEN v. SAME. |
Transferred from Superior Court, Strafford County; Marble, Judge.
Separate actions by Mary G. Collins, administratrix, and by Thomas H. O'Brien, administrator, against one Hustis, receiver of the Boston & Maine Railroad. Cases transferred to the Supreme Court on exceptions by defendant in each case to denial of motions for nonsuit and verdict. Exceptions overruled in the first case, and judgment rendered for defendant in the second case.
The actions were to recover for the death of the plaintiffs' intestates, Nora K. Collins and Joseph I. O'Brien, caused by a collision, June 27, 1917, between an automobile in which the deceased were riding and a passenger train upon a grade crossing of the defendant railroad and the East side road in Milton.
Justin A. Emery, of Rochester, and Richard L. Sisk, of Lynn, Mass., for plaintiffs.
Snow, Snow & Cooper, of Rochester, Hughes & Doe, of Dover, and Conrad E. Snow, of Rochester, for defendant.
In support of their exceptions the defendants contend that the evidence conclusively establishes the fault of the parties injured and is insufficient to authorize a finding of fault in the defendants as a cause of the injuries sued for.
As to Joseph I. O'Brien, the first contention is well founded, and the exceptions in the suit of O'Brien, administrator, are sustained. The plaintiffs' evidence was that O'Brien was an experienced automobile driver, acquainted with the crossing upon which he was killed, and was accustomed, from his business of hotel manager in Rochester, to keep himself informed as to the time card of the defendant's trains and their customary deviation from schedule, and that he was customarily careful in the management of his car at this crossing. The crossing was protected by an automatic signal of bell and lights, which were giving the usual warning as the train approached. There was a signal on the highway calling attention to the crossing 400 feet before it was reached, and the usual signs at the crossing. The whistle for the crossing was sounded from the engine at the signal post, 1,300 feet distant and the bell rung.
The evidence of the operation of the signals of the automatic flagman and the sounding of the crossing signals was direct and positive, and the failure to hear of witnesses who so testified is so clearly explainable on other grounds than the failure of the signals themselves, that the evidence to the contrary amounts to no more than a scintilla, which reasonable men could not consider sufficient to counterbalance the direct evidence of the fact. Kingsbury v. Railroad, 79 N. H. 203, 204, 106 Atl. 642. But, leaving the evidence as to the signals out of the case, it conclusively appears that the train approaching from the left must have been visible to O'Brien, driving on the left side of the automobile, in season for him, approaching the point of danger with care, to have stopped his machine, if he had looked or paid any attention to the dangers of the crossing, with which he was familiar. Especially would it be certain that he must have become aware of the approaching train, if he, following his custom according to the testimony, had slowed to 6 miles per hour or obeyed the statute, which required him to reduce the speed of his machine after passing the warning signal located 400 feet from the crossing, so that within 100 feet of the crossing it should not proceed at a greater speed than 10 miles per hour. Laws 1917, c. 88, § 2. The only conclusions which could be reached upon this evidence are that O'Brien, having taken no precautions to learn if a train was approaching, drove upon the crossing in ignorance of its proximity, or, with equal lack of care, failed when near the crossing to diminish speed in accordance with his custom, or the command of the statute, until so near that it was impossible to stop upon observing the train, or, third, knowing the train was approaching, he voluntarily and unnecessarily took the risk of an attempt to pass in advance of it.
If he drove on the track in ignorance of the approaching train, or was unable to stop because of the speed with which he approached the crossing, his ignorance and inability to stop must be found to be due to his failure to exercise any care for his own protection. Such failure is negligence, which prevents a recovery. Waldron v. Railroad, 71 N. H. 362, 52 Atl. 443; Gahagan v. Railroad, 70 N. H. 441, 446, 50 Atl. 146, 55 L. R. A. 426.
If, on the remaining view which might possibly be taken of the evidence, O'Brien observed the train and attempted to cross in front of it, and the collision resulted from his miscalculation of the speed of the train and the probable operation of his machine, as is quite probable, he voluntarily put himself in a place of danger of his own motion, and cannot recover for the results of his own...
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