Cyr v. Boston & M. R. R.

• Decision Date: 04 November 1936
• Citation: 188 A. 3
• Parties: CYR v. BOSTON & M. R. R. (two cases).
• Court: New Hampshire Supreme Court

188 A. 3

CYR

v. BOSTON & M. R. R. (two cases).

Supreme Court of New Hampshire. Hillsborough.

Nov. 4, 1936.

Exceptions from Superior Court, Hillsborough County; Burque, Judge.

Separate action by Mary Cyr and by Venie Cyr against the Boston & Maine Railroad. Verdicts were for the plaintiffs, and the defendant's exceptions to denial of its motions for directed verdicts were transferred without ruling on defendant's motions to have verdicts set aside as excessive.

Exceptions overruled.

Two actions on the case, for negligence. The first is to recover for personal injuries, the second is for property damage. A trial by jury after a view resulted in verdicts for both plaintiffs.

BURQUE, J., transferred the defendant's exceptions to the denial of its motions for directed verdicts, and transferred without ruling its motions to have the verdicts set aside as excessive. Other exceptions taken during the course of the trial have been neither briefed nor argued, and are understood to have been waived.

The material facts are stated in the opinion.

Doyle & Doyle and Paul J. Doyle, all of Manchester, for plaintiffs.

Warren, Wilson, McLaughlin & Wiggin and J. Walker Wiggin, all of Manchester, for defendant.

WOODBURY, Justice.

The principal highway between Portsmouth on the east and Keene on the west, known as route 101, crosses the line of the defendant's Portland division at grade in the town of Exeter. The highway at this point is paved with cement, each lane of which is 10 feet wide, and the defendant's right of way is double-tracked. This crossing, known as the Main street crossing is protected between the hours of 6 a. m. and 11 p. m. by manually operated crossing gates.

As a traveler over the highway from the east approaches this crossing his view down the tracks to his left, that is toward the south, is to some extent obstructed by two buildings; one the gatekeeper's shanty, or cabin, the other a disused fire station.

The gatekeeper's cabin is a small building, about 7 feet square and about 8 feet high at the eaves; its total height does not appear. It is located 27 feet south of the center of the highway and about 14 feet east of the nearest rail. The fire station is a two-story frame building, 29 feet south of the center line of the highway and about 33 feet east of the nearest rail. Between these buildings there is a clear space of about 14 feet.

The view toward the north is also, although to a less extent, obstructed by a building used as a store.

About 11:30 o'clock on the evening of September 28, 1933, the plaintiffs approached this crossing over the highway from the east in an automobile owned and operated by the plaintiff Venie. The plaintiff Mary, who is his wife, sat on the front seat beside him.

As they came toward the crossing, which both had been over several times before but never at so late an hour at night, they noticed the statutory warning signs located beside the highway, and Venie reduced the speed of his car to eight or ten miles per hour. They both testified that they looked to both left and right, and that they listened for the bell or whistle of any locomotive which might be approaching. Seeing and hearing nothing, and seeing the crossing gates up, Venie drove onto the crossing where the front of his car collided with the foremost of two locomotives attached to the front end of a northbound freight. This train was on a regularly scheduled run, it had not stopped at the Exeter Station which is located a short distance south of the crossing, and, at the time of the accident, it was traveling about 35 miles per hour.

On the above facts it could be found that the defendant was negligent in two respects: First, for failure to provide adequate safeguards for the protection of highway travelers at the time of the accident; and, second, for failure of the engine crew to give warning of the approach of the train by sounding the whistle or bell.

"Reasonable need of special crossing protection 'is to be determined by the special and unusual dangers of the crossing considered,' and among the 'special features of pertinent bearing' are the 'clearness of view of the track,' the 'amount and character of travel' over the crossing and 'the extent of train movements' there." Despres v. Boston & M. Railroad, 87 N.H. 427, 181 A. 420, 421, citing Stocker v. Boston & M. Railroad, 83 N.H. 401, 405, 143 A. 68. Applying this test to the evidence in the case before us, it is clear that reasonable men might find that due care required more protection at the Main street crossing than that provided by the defendant between the hours of 11 p. m. and 6 a. m.

Route 101 is an important thoroughfare, well paved, and subjected to frequent use by the public generally throughout the full 24 hours of the day. The defendant's Portland division is the principal railroad line between Boston, Mass., and Portland, Me.; it is double-tracked, and was in regular use at Exeter after the gatekeeper went off duty at 11 o'clock at night. Furthermore, a highway traveler's view of the track is not clear and unobstructed, but is to a considerable extent impeded by the buildings above referred to. Under these circumstances it is for the jury to say whether or not the defendant was in the exercise of due care in leaving the crossing...