Davis v. Boston & M. R. R.

• Decision Date: 15 March 1901
• Court: New Hampshire Supreme Court
• Parties: DAVIS v. BOSTON & M. R. R.

49 A. 108

70 N.H. 519

DAVIS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

March 15, 1901.

Exceptions from Merrimack county.

Action by Charles B. Davis against the Boston & Maine Railroad for personal injuries. Prom an order nonsuiting plaintiff on previous exceptions. Overruled.

The evidence showed that plaintiff was run over by an engine October 18, 1897, while in the defendants' station in Concord. He was not there on business with the defendants, but for his own convenience.

Cornelius E. Clifford and David P. Dudley, for plaintiff. Frank S. Streeter and John M. Mitchell, defendants.

YOUNG, J. The plaintiff must show, in order to recover, (1) that the defendants were negligent; (2) that their negligence was some part of the legal cause of his injury; and (3) that he was without fault at the time the accident happened. Legal negligence is the failure to perform a duty the law imposes upon one person for the benefit of another. Consequently, when there is no duty there can be no negligence.

Although the ownership of land imposes no duty upon the owner for the benefit of trespassers (Clark v. Manchester, 62 N. H. 577; Frost v. Railroad, 64 N. H. 220, 9 Atl. 790; Buch v. Manufacturing Co., 69 N. H. 257, 44 Atl. 809), it does not relieve him from any of the ordinary consequences of his wrongful acts; and he must answer in damages if he intentionally injures any one who comes upon his premises, whether that person is an invitee, licensee, or trespasser, for the law imposes upon every one the duty of not intentionally injuring others (Shea v. Railroad, 69 N. H. 361, 41 Atl. 774; Buch v. Manufacturing Co., 69 N. H. 257, 44 Atl. 809; Mitchell v. Railroad, OS N. H. 90, 34 Atl. 674; Felch v. Railroad, 66 N. H. 318, 29 Atl. 557; Frost v. Railroad, 64 N. H. 220, 9 Atl. 790; Clark v. Manchester, 62 N. H. 577). An injury to a trespasser is intentional, within this rule, if the landowner knew of the trespasser's presence in time to prevent the accident by the exercise of ordinary care. This is true whether the blow which caused it was struck by the landowner's hand, or by a locomotive or stationary machine under his control; for, if the machine is under his control, it only acts through him, and its acts are his. This is a rule of universal application; for, while there is a conflict of opinion as to what constitutes an intentional injury, all courts hold that injuries inflicted under such circumstances are intentional, and that the trespasser may recover if he was using due care to avoid being injured at the time the accident happened. Shear. & R. Neg. (6th Ed.) § 99. In this state a person is held to know not only what he actually does know, but also everything he could know by the use of due care. So a landowner will be held to know of the presence of trespassers, not only when he is actually cognizant of it, but also when he is in fault for not knowing it. He is thus in fault if he fails to use due care to discover the trespasser's presence when circumstances exist which would put a man of average prudence upon inquiry. Shea v. Railroad, 69 N. H. 361, 41 Atl. 774. So the landowner's duty of not intentionally injuring trespassers includes the use of due care to discover their presence whenever such circumstances exist. In the present case there was evidence that the defendants ought to have anticipated the presence of persons upon their track at the point where the accident happened, and that if they had used ordinary care they would have seen the plaintiff in time to prevent the accident. Consequently the jury could have found that the defendants failed to perform a duty the law imposed upon them for the plaintiff's benefit. But the plaintiff must go further, and show that the defendants' negligence was some part of the legal cause of his injury; for he cannot be heard to complain of their negligence unless he shows that he has suffered because of it. A wrong is the legal cause of an accident when it is the last act, or one of the last acts, of a responsible agent in the series of causation which led up to it, or one of the last acts but for which the accident would not have happened. All the other acts in the series are the conditions upon which the cause operated to produce the result Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159. When a landowner knows, or, what is the same thing, ought to know, that a trespasser is on his premises, in time to avoid injuring him, and then carelessly drives over him with a horse and carriage or a locomotive, the landowner's failure to perform his duty of using due care to discover the trespasser's presence is a wrong subsequent in the series of causation to the trespasser's wrongful entry; but whether it was the sole legal cause, a contributing cause, or one of the conditions of the accident, depends upon whether either, neither, or both of the parties could subsequently have prevented an accident. If neither of them could, or if the landowner could, and the trespasser could not, subsequently have prevented it by the use of ordinary care, the landowner's negligence would be the sole legal cause of the accident. If each of them could have prevented it at the time it happened by using such care, then their negligence concurred to cause it. If the trespasser could, and the landowner could not, have so prevented it, the trespasser's negligence is the sole legal cause of the accident and the landowner's failure to discover his presence one of the conditions on which this cause acted to produce it in each of these cases it is apparent that the legal cause of the accident is the last wrongful act of a responsible agent in the series of causation. All the other wrongs are simply the conditions upon which this cause acted to produce it; for all of the conditions might have existed, and but for the cause no accident have happened. For instance, in the first case, notwithstanding the trespasser's wrongful entry, no accident would have happened if the landowner had performed his duty of using ordinary care to discover the trespasser's presence; in the second, no accident would have happened if either had been doing his duty; and in the third, no accident would have happened, notwithstanding the landowner's failure to use ordinary care to discover his presence, if the trespasser had not subsequently been negligent. It follows that, if a trespasser is injured by a landowner's failure to use ordinary care to discover his presence when circumstances exist which should have put him on inquiry, the trespasser may recover, provided he was using ordinary care to prevent being injured; for, although his wrongful entry exposes him to the risk of injury, it is no part of the legal cause thereof.

Notwithstanding a wrongdoer cannot recover for injuries to which his wrongful act contributed in any degree, he may when it is only the occasion or one of the conditions of his injury; and his wrongful entry is the occasion, and not the cause, of such an accident when it would not have happened but for the landowner's subsequent wrongful act in this case it is clear that the jury could have found, from the fact that the accident happened in the defendants' station, that they ought to have anticipated the presence of trespassers at that point; for it is a matter of common knowledge that people collect together at such places, and that, if the defendants had performed the duty which this knowledge imposed upon them,— of using due care to discover the plaintiff's presence,—they would have seen him in time to prevent the accident. Hence, in any view of the case, there was evidence that the defendants' negligence contributed to cause the plaintiff's injury; for there was no evidence that he actually knew of their negligence before the accident happened. It was the plaintiff's duty to use due care to avoid being...