Dorr v. Atl. Shore Line Ry.

• Citation: 76 N.H. 160,80 A. 336
• Parties: DORR v. ATLANTIC SHORE LINE RY.
• Decision Date: 06 June 1911
• Court: Supreme Court of New Hampshire

80 A. 336

76 N.H. 160

DORR

v. ATLANTIC SHORE LINE RY.

Supreme Court of New Hampshire. Rockingham.

June 6, 1911.

Exceptions from Superior Court, Rockingham County; Chamberlin, Judge.

Action by Joseph F. Dorr, administrator, against the Atlantic Shore Line Railway, for personal injuries resulting in the death of plaintiff's intestate. There was a verdict for plaintiff, and defendant brings exceptions to the denial of a motion for nonsuit, and to the admission of evidence of the declaration of the intestate, made about 10 minutes after the accident, and after he had been carried to his home, to the effect that a car ran over him. Exceptions overruled, and judgment on the verdict.

Kelley, Harding & Hatch, for plaintiff.

Kivel & Hughes, for defendant.

WALKER, J. The evidence justified the jury in finding the following facts: The plaintiff's intestate at the time of his injuries was a boy 5 1/2 years old. About 10 minutes before he was injured he left the house of a neighbor, which was located nearly opposite the junction of Keene avenue and the highway leading from York to Kittery. The place of the accident was in Maine. It does not appear that any one saw him after he left the neighbor's house until just after the passing of a mail car on the defendant's electric line, which it operated along the highway above mentioned. The track of the railway ran along the side of the highway opposite the house where the boy was last seen. In order to go from that house to his home on the avenue, it was necessary for him to cross the track, which he would naturally do at the junction. The highway was some 30 feet wide, and while crossing the street in the manner suggested the boy would have been in plain sight of the motorman, who might have reduced the speed of the car in time to avoid running onto him. But it is conceded that the motor-man did not see him before the accident, and did nothing to avoid injuring him. He was apparently running his car at the rate of some 15 miles an hour, and took no precautions for the safety of travelers who might be crossing at the junction. Upon such evidence, argument is unnecessary in support of the finding that the defendant was negligent, and that its negligence was a proximate cause of the boy's fatal injuries.

Nor is it necessary to discuss the question whether the motorman could have seen the boy in time to avoid striking him, if he had been approaching the track from the other direction, as he might have been, since...