Dennis v. Boston & Me. R. R. Ellsworth

• Decision Date: 01 October 1946
• Docket Number: No. 3591.,3591.
• Citation: Dennis v. Boston & Me. R. R. Ellsworth, 94 N.H. 164, 49 A.2d 164 (N.H. 1946)
• Parties: DENNIS v. BOSTON & MAINE R. R. ELLSWORTH v. SAME.
• Court: New Hampshire Supreme Court

49 A.2d 164

DENNIS

v.BOSTON & MAINE R. R.

ELLSWORTH

v.SAME.

No. 3591.

Supreme Court of New Hampshire.

Oct. 1, 1946.

Transferred from Superior Court, Merrimack County; Lorimer, Judge.

Actions on the case by Napoleon Dennis, administrator of the estate of Napoleon Dennis, Jr., and by Elmer Ellsworth against Boston & Maine Railroad for death of first plaintiff's decedent and destruction of second plaintiff's truck in a collision with defendant's train. Case transferred on plaintiffs' exceptions to order granting defendant's motion for a nonsuit in each action.

New trial.

Two actions on the case for negligence arising out of a motor vehicle accident which occurred on a private crossing in Penacook, in the city of Concord on the eighteenth day of September, 1942. Trial by jury, with a view. The truck was owned by the plaintiff Ellsworth and was being driven at the time of the accident by his employee, Napoleon Dennis, Jr., in the course of the plaintiff Ellsworth's business. Damages are sought in these two suits for the death of the driver and the destruction of the truck. At the close of the plaintiffs' evidence the defendant seasonably moved for a nonsuit in each action. The motions were granted and both plaintiffs seasonably excepted. Transferred by Lorimer, C. J.

Although the crossing in question was referred to in the record as a ‘private’ crossing, it was private only in the sense that it was not a part of a public highway. The crossing was, in fact, maintained by the defendant for the use of its patrons who had occasion to visit two side tracks on the easterly side of its main line track where cars were spotted for loading and unloading. It was in fact an extremely dangerous crossing. The roadway in question passed over the defendant's main line track fifty-one feet north of the Penacook station, which largely obstructs the view of a person approaching from the west. The plan introduced by the plaintiffs shows that a person approaching this crossing from the west can see the easterly rail of the main line at a point sixty-nine feet south of the southeasterly line of the crossing when at a distance of eighty feet from the westerly line of the track. The view improves slightly as he approaches the track, so that at a distance of thirty feet from the track he can see southerly a distance of one hundred and twenty feet. The train in question was proceeding north at a speed of fifty-five to sixty miles per hour. It was twenty minutes behind the schedule time. This was a frequent occurrence during the war. The engineer testified that he was almost always late in passing the Penacook station. Other facts are stated in the opinion.

BURQUE, J., dissenting.

Murchie & Murchie and Willoughby A. Colby, all of Concord (Alexander Murchie, of Concord, orally), for plaintiffs.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord (Jonathan Piper, of Concord, orally), for defendant.

BRANCH, Justice.

There was abundant evidence of the defendant's negligence, and the entire emphasis of the defendant's argument was directed to the contention that the plaintiff was guilty of contributory negligence. The case has, therefore, been considered solely with reference to this question.

By Laws 1915, c. 148, the burden of proving contributory negligence in cases of personal injury is imposed upon the defendant. ‘Under the present law, no evidence as to the care of the deceased is necessary as a part of a plaintiff's case, and when his conduct is disclosed by the evidence a verdict can be directed for the defendant only when it conclusively appears that he was at fault, as in Collins v. Hustis, supra [79 N.H. 446, 111 A. 286.] If his conduct admits of any reasonable and nonculpable explanation, the question of his due care is for the jury.’ Jones v. Boston & M. R. R. 83 N.H. 73, 78, 139 A. 214, 217. In a case where the evidence does not disclose the actual conduct of a decedent at the time of the accident, a nonsuit can be entered only if the circumstances of the accident conclusively negative the possibility that the decedent exercised any care for his own safety. If it may be found that he exercised some care the question whether it was due care is for the jury. Cyr v. Boston & M. R., 88 N.H. 278, 282, 188 A. 3. In the present case there were no eye witnesses to the actual collision and no one knows exactly what the deceased driver did immediately before it occurred, hence it cannot be said that ‘it conclusively appears that he was at fault.'

Only three witnesses gave testimony which could be regarded as bearing upon the conduct of the deceased at the time of the collision. One of these witnesses was William Foster who testified that he lived within four hundred feet of the crossing and that the truck, driven by the decedent at a speed of twenty-five miles per hour, passed his house immediately before the accident and that he waved his hand to the deceased. He testified that after the truck passed, he opened the door and walked into the kitchen of the house when he heard the whistle of the train. Within ten or twelve seconds thereafter he heard the crash of the collision. The...