Dahar v. Boston & M.R.R.

• Decision Date: 07 June 1949
• Docket Number: No. 3796.,3796.
• Citation: 66 A.2d 707
• Parties: DAHAR v. BOSTON & M.R.R.
• Court: New Hampshire Supreme Court

66 A.2d 707

DAHAR

v.BOSTON & M.R.R.

No. 3796.

Supreme Court of New Hampshire.

June 7, 1949.

COPYRIGHT MATERIAL OMITTED.

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

Case by Saheed W. Dahar against Boston & Maine Railroad for personal injuries and property damage suffered by plaintiff when his truck collided with defendant's train at grade crossing. Verdict for plaintiff of $4,875. Case reserved and transferred from trial court on defendant's exceptions.

New trial.

Case for negligence to recover damages for personal injury and property damage suffered by the plaintiff when his panel truck was in collision with the defendant's train at a grade crossing in Bow on October 21, 1943. The facts are more particularly stated in the opinion.

Trial by jury with a view. A verdict was returned for the plaintiff in the sum of $4875. The defendant excepted to the denial of its motions for a nonsuit, a directed verdict, for judgment notwithstanding the verdict, and to set aside the verdict, among other reasons because excessive. The defendant also excepted to portions of the argument to the jury by plaintiff's counsel, and to the denial of certain requests for instructions to the jury.

Reserved and transferred by Goodnow, C. J. Wyman, Starr, Booth, Wadleigh & Langdell, Manchester (Robert P. Booth, Manchester, orally), for plaintiff.

McLane, Davis, Carleton & Graf and Stanley M. Brown, Manchester, for defendant.

DUNCAN, Justice.

The collision occurred at dusk on a fair day, between six and half past in the evening, as the plaintiff drove his truck in an easterly direction over the Hall Street or Old River Road crossing. The defendant's train was northbound from Boston to Concord and consisted of a locomotive and twelve cars, travelling at a speed of fifty miles an hour. The headlight of the locomotive was lighted. The plaintiff had been travelling northerly on the Londonderry Turnpike at a speed of about thirty-five miles an hour. He reduced his speed to approximately fifteen miles an hour when he turned into Hall Street to approach the crossing, and was proceeding at a speed between five and ten miles an hour when the accident occurred. He estimated that he could stop his truck in twenty to twenty-five feet at fifteen miles an hour, and seven to fifteen feet at ten miles an hour.

The westerly rail of the northbound track, where the accident took place, was about one hundred fifty feet from the Londonderry Turnpike, measured along the line of Hall Street. The street intersects the defendant's tracks at an angle of fifty-two degrees. Before reaching the northbound main, the plaintiff proceeded up a short but rather steep grade, over a side track which was the high point of the grade, and across the southbound main track. The distance between tracks along the diagonal course of the street was approximately ten feet.

The crossing was within yard limits and work cars were stationed on the side track on both sides of the crossing, although the track extended north of the crossing for five or six hundred feet. A number of them consisting of a compressor car, three trailers, and a derrick, were stationed north of the crossing commencing about thirteen feet from it. South of the crossing, eighteen and one half feet away, were three compressor cars which occupied the track for a distance of something over thirty-seven feet. There was evidence that these compressors were about seven feet high and would completely obstruct the view which a motorist going easterly would have of a train approaching on the northbound track over distances which varied according to the viewpoint. From a point 44 feet west of the nearest northbound rail, the portion of a train between points 62 feet and 293 feet south of the crossing would be invisible. From a point 39 feet from the rail, only so much of a train as was within 79 feet of the crossing could be seen; from a point 34 feet away, only so much as was within 121 feet of the crossing. A full view of the track to the south could not thereafter be obtained until a point on the sidetrack was reached, 29 feet from the westerly northbound rail. If the plaintiff proceeded at a speed of fifteen miles an hour and the train at fifty, when he was 44, 39, 34 and 29 feet from the westerly rail, the corresponding distances which the front of the train was from the crossing were approximately 146, 129, 113 and 97 feet. If the plaintiff's speed was less, the train was proportionately farther away.

Upon the same assumption that the plaintiff's speed was fifteen miles an hour and that of the train fifty, it was necessary for the plaintiff to look to the south at an angle of one hundred eleven and one half degrees from straight ahead, in order to see the train at any point where the view was not obscured by the compressors. However, because the construction of the truck afforded a view to the side only through the window in the door, the plaintiff's vision to the south was limited to a field within a lesser angle of ninety-nine degrees thirty minutes from straight ahead. There was therefore no time before the collision when he was able to see the train from the driver's seat, assuming the speeds previously mentioned.

Both the engineer and the fireman testified that warning of the approaching train was given by bell placed in operation at the whistling post 1360 feet south of the crossing, and by statutory whistle signals commenced at the post and continued to the crossing. The plaintiff heard neither warning. The front of his truck was struck by the train, and the truck was carried some eighty feet north of the crossing.

By its motions and requests for instructions, the defendant brought in issue the sufficiency of the evidence to warrant a finding for the plaintiff. The requested instructions would have withdrawn from the jury consideration of certain issues of negligence, among them the issue of whether warning was given by the whistle and bell of the locomotive. The defendant requested an instruction that both were sounded from the whistle post to the crossing. In support of its exception to the denial of this request, it urges that the plaintiff's testimony that he heard neither signal was insufficient to support a finding that they were not given, or to counterbalance the direct evidence that they were, within the rule of Morier v. Hines, 81 N.H. 48, 53, 122 A. 330.

Direct evidence that the signals were given came from the engineer and the fireman. Of four trackmen who were standing by the work train, two testified that they heard both bell and whistle. A third, who had since left the defendant's employ was not asked about it, and the fourth was not called as a witness. The plaintiff's testimony was that although the left window of his truck was open, and although his hearing was good, he heard neither whistle nor bell; and that he would have heard them had they been sounded. The plaintiff offered no other evidence upon the issue. His own testimony falls short of the ‘distinct affirmative evidence of the existence of negligence’ necessary to warrant submission to a jury. Paine v. Grand Trunk Railway, 58 N.H. 611, 613. It contained no direct statement that the signals were not given, and no assertion that the plaintiff was listening for them or was attentive to the possibility that such warnings might be sounded. Cf. Stinson v. Maine Cent. Railroad, 81 N.H. 473, 474, 128 A. 562; Phillips v. Boston & M. Railroad, 81 N.H. 483, 128 A. 809; Morrison v. Boston & M. Railroad, 86 N.H. 176, 181, 164 A. 553; Cyr v. Boston & M. Railroad, 88 N.H. 278, 281, 188 A. 3; Lavallee v. Boston & M. Railroad, 89 N.H. 323, 324-325, 197 A. 816.

As the plaintiff approached the crossing, his attention was undoubtedly distracted by the work train which obstructed his view, and the workmen in charge of it who stood nearby. If it may be inferred that he was listening for signals from the evidence that he was attentive in other respects, his failure to hear was explainable upon grounds other than failure of the signals. Morier v. Hines, supra, 81 N.H. at page 53, 122 A. 330. The window of the truck which was toward the source of the sound was closed, and according to the testimony of one of the plaintiff's witnesses, ‘a solid body between the source of the sound and a person listening has a tendency to deflect and deaden the sound * * *.’

The state of the evidence presented more closely resembles that in Morier v. Hines, supra, than in the cases relied upon by the plaintiff. While the weight of the testimony of the defendant's witnesses might be affected by the circumstance that they were employees of the defendant, the plaintiff's burden of furnishing the basis for a finding that the signals were not given was not thereby lessened. Morier v. Hines, supra, 81 N.H. at page 52, 122 A. 330. His evidence was not, as was the evidence in Stinson v. Maine Cent. Railroad, supra, ‘direct and affirmative to the effect that the [signals] did not [sound].’

81 N.H. at page 474, 128 A. at page 563. Accordingly, we are constrained to hold that the issue should have been withdrawn for lack of substantial evidence upon which to found a verdict for the plaintiff. Collins v. Hustis, 79 N.H. 446, 111 A. 286; Kingsbury v. Boston & M. Railroad, 79 N.H. 203, 106 A. 642; Morier v. Hines, supra; Collette v. Boston & M. Railroad, 83 N.H. 210, 216, 140 A. 176; Despres v. Boston & M. Railroad, 87 N.H. 427, 181 A. 420; Smith v. Boston & M. Railroad, 87 N.H. 246, 265, 177 A. 729. The defendant's exception to the refusal to give the substance of its requested instruction is sustained.

By other instructions requested by the defendant, the jury would have been instructed that ‘there is no evidence that the train was being operated at an excessive rate of speed,’ and the issue of the need for special protection at the crossing would have been withdrawn. Both of these issues were submitted. The evidence that the train was...