Davis v. Concord & M. R. R.

• Decision Date: 15 March 1895
• Citation: 68 N.H. 247,44 A. 388
• Court: New Hampshire Supreme Court
• Parties: DAVIS v. CONCORD & M. R. R.

44 A. 388

68 N.H. 247

DAVIS

v. CONCORD & M. R. R.

Supreme Court of New Hampshire. Grafton.

March 15, 1895.

Exceptions from Grafton county.

Action by Emily Davis, administratrix of Orren B. Davis, deceased, against the Concord & Montreal Railroad, for negligently causing the death of her intestate. There was a judgment for plaintiff, and defendant excepts. Exceptions overruled.

Orren B. Davis was struck by a locomotive while driving over a highway crossing of the defendants' railroad in Rumney. There was a flag station at the crossing where the collision occurred. The plaintiff put in evidence the following rules of the defendants, subject to their exception: "Rule 22. The speed of passenger trains must be reduced to fifteen miles per hour passing stations. Lost time must not be made up on heavy descending grades, sharp curves, or on track known to have rough places." "Rule 183. They [the brakemen] must be at their brakes, or just inside the door, while the train is moving, ready to act instantly." "Rule 184. When approaching or passing stations, and at all points where stops are required by law, brakemen must stand at the brakes, ready to apply them if called for, and not rely wholly upon the air brake." The defendants requested the following instructions, which were not given, and they excepted: "(1) It is the duty of a traveler upon the highway, in approaching a railway crossing, to look both ways, and listen for trains, at a safe distance from the track, or to take such other precautions as may be necessary to ascertain that he may cross without danger of being struck by an approaching train. (2) Where a traveler upon the highway, approaching a railway crossing with which he is familiar, with an unobstructed view of the railroad track in both directions, advances to the point of intersection without looking or listening for an approaching, train, such conduct will constitute negligence per se, so as to preclude a recovery for injuries inflicted upon him by a train while attempting to cross. (3) The track of a railroad intersecting a highway at grade is in itself a warning and notice of danger which it is the duty of the traveler upon the highway to heed. It is such notice of danger as to put the traveler upon his guard. (4) The fact that a train is behind time does not relieve a traveler from the duty of looking out for approaching trains, and ascertaining that he may cross without danger of collision. A railroad has the right to run trains at all times, and those crossing the tracks are entitled to no exemption from care and vigilance because trains are irregular or extra. It is the duty of the traveler to approach a railroad crossing under the apprehension that a train is liable to come at any moment.

(5) Davis was bound to listen and look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk his horses carelessly into the place of possible danger. Had he used his senses, he could not have failed both to hear and see the train which was coming. If he omitted to use them, and walked his horses thoughtlessly upon the track, he was guilty, and so far contributed to his injury as to deprive him of any right to complain of others. If, using them, he saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of his mistake and temerity cannot be cast upon the defendants." The defendants also excepted to the denial of their motions for nonsuit and for a verdict. Further facts appear in the opinion.

John Kivel, John S. H. Frink, and Bingham & Bingham, for plaintiff.

Frank S. Streeter, Samuel B. Page, Joseph W. Fellows, and Drew, Jordan & Buckley, for defendant.

SMITH, J. Several witnesses testified, subject to the defendants' exception, that during the three years preceding the death of the plaintiff's intestate they often saw him drive over the crossing in question, and that he always drove slowly, and watched for trains. It was conceded at the argument that the evidence was competent as tending to show that the deceased, on approaching the crossing on the morning of the accident, was watching for the train; that he stopped, or drove slowly, and looked up and down the track, to ascertain whether a train was approaching. It has repeatedly been held in this state that such evidence is competent upon the ground that "a person is more likely to do or not to do a thing, or to do it or not to do it in a particular way, as he is in the habit of doing it or not doing it." State v. Manchester & L. R. R., 52 N.H. 528, 549, 550; Hall v. Brown, 58 N.H. 93, 96, 98; State v. Boston & M. R. R., 58 X. H. 410, 412; Plummer v. Ossipee, 59 N.H. 55, 59; Nutter v. Boston & M. R. R., 60 N.H. 483, 485; Parkinson v. Nashua & L. R. Co., 61 N.H. 416; Lyman v. Boston & M. R. R., 66 N.H. 200, 20 Atl. 976.

But the defendants claim that the evidence logically tended to show, not only that Davis looked up and down the track to ascertain whether trains were approaching, but that he saw the approaching train, "and knowingly and deliberately drove in front of it." This claim brings us to the consideration of the question raised by the denial of the motion for a verdict for the defendants. The question has been argued solely upon the ground that the accident was caused by the want of due care on the part of the deceased. The plaintiff's evidence tended to show that the train left Plymouth from 10 to 20 minutes late, and at the time of the collision was running at the rate of 40 to 50 miles an hour; that the crossing was visible from the engine at a distance of one-half mile or more; that for the distance of 165 feet before reaching the crossing an approaching train could have been seen by a highway traveler for the distance of 600 feet on the track, except that upon the highway, between 67 and 40 feet from the crossing, the train was not visible, by reason of a knoll, until it was within about 300 feet of the crossing; that the deceased was familiar with the crossing; that his horses were kind, and not afraid of the cars, were walking at the time of the collision and for 10 or 15 rods before reaching the crossing; that in going over the crossing on prior occasions the deceased was uniformly cautious, and careful to look for trains. The evidence was all one way that the deceased was traveling with a suitable team, and approached the crossing as a careful and prudent person would. There was competent evidence, as it is conceded, tending to show that he looked for the coming of any train that might be approaching the crossing. If he looked, it is certain he must have seen the train within the distance of about 600 feet. The single question, then, is whether the evidence conclusively shows that the attempt to cross before a train within that distance was so imprudent and reckless that no prudent person would have attempted it; or whether there was a question for the jury to determine from the evidence, viz. whether the deceased exercised proper care and caution. "There is no fixed standard in the law by which a court is enabled to arbitrarily say in...