Dowse v. Maine Cent. R. R.

• Decision Date: 23 June 1941
• Citation: 20 A.2d 629
• Parties: DOWSE v. MAINE CENT. R. R.
• Court: New Hampshire Supreme Court

20 A.2d 629

DOWSE

v. MAINE CENT. R. R.

Supreme Court of New Hampshire. Coos.

June 23, 1941.

Exceptions from Superior Court, Coos County; Lorimer, Judge.

Action of case by Warren E. Dowse against Maine Central Railroad for negligently killing three cows belonging to plaintiff. Verdict for plaintiff, and case transferred from trial term on defendant's exceptions.

Exceptions overruled and judgment on verdict.

Case, for negligently killing three cows belonging to the plaintiff. The cows were struck by the engine of a mixed train at a private farm crossing used by the plaintiff when passing to and from a meadow situated westerly of his farm buildings. Trial by jury and verdict for the plaintiff.

The defendant moved for a nonsuit and for a directed verdict, and excepted to the denial of both motions. It also excepted to the admission of certain evidence and to the submission of certain issues to the jury. The material facts are stated in the opinion. Transferred by Lorimer, J.

Leon D. Ripley, of Colebrook, and Crawford D. Hening, of Berlin (Mr. Hening orally), for plaintiff.

Hinkley & Hinkley, of Lancaster (Irving A. Hinkley, of Lancaster, orally), for defendant.

MARBLE, Justice.

The plaintiff's farm was situated in the town of Stratford, and the accident occurred on September 20, 1939. The defendant's track at the place of the accident ran approximately north and south. The track of the Canadian National Railway paralleled it on the west, and the plaintiff's meadow lay west of that track. A fence ran along the defendant's right of way on the east, and a gate in this fence gave access by way of the crossing in question to the strip of land between the two sets of tracks. There was a fence about sixty feet west of the Canadian National track, and a gate in that fence opened into the meadow.

The plaintiff had occupied his farm for about nineteen years. Each fall, beginning about the first of September, he was accustomed to turn his herd of cows into the meadow for fall feeding, driving the cows over the crossing in the morning and back late in the afternoon. The approach to the crossing from the west was up a sharp incline.

At about half past four on the afternoon of the accident the plaintiff's son went to the meadow in his automobile to drive the cows (about twenty in number) to the barn. After he had collected the herd at the west gate, he "listened for trains," then opened the gate and returned to his automobile. Starting the car, he drove the cows ahead of it across the Canadian National track and toward the east gate, which he had left open on his way to the meadow. The distance from the west gate to the defendant's track was about 150 feet. While the cows were crossing this track a southbound train comprising an engine and ten or twelve cars struck the last three cows. The locomotive whistle was blown almost simultaneously with the accident; the bell did not ring at all. This train was the only regular daily southbound train passing the plaintiff's farm.

The track approached the crossing on a curve flanked by high knolls. A train could be seen north of the crossing for a distance of approximately 318 feet. The defendant had posted a sign on the east fence stating that no signals would be given by approaching trains. This fact was known to the plaintiff and his son. The train was more than two hours late and was running at a speed of forty or forty-five miles an hour, which was from ten to twenty miles an hour faster than its usual speed. The plaintiff's son knew that this train was frequently late. He did not know whether it had passed the farm or not when he started to drive the cows toward the crossing.

Although the defendant was under no statutory obligation to give warning of the train's approach (Wentworth v. Railroad, 86 N.H. 251, 252, 166 A. 265), it was not absolved from the duty of exercising a degree of care commensurate with the known situation. Stocker v. Railroad, 83 N.H. 401, 404, 143 A. 68; Morris v. Railroad, 85 N.H. 265, 274, 160 A. 52; Czech v. Railway, 68 Minn. 38, 42, 43, 70 N.W. 791, 38 L.R.A. 302, 64 Am.St.Rep. 452; 22 R.C.L. 1004, 1005.

Each fall for the past nineteen years the plaintiff had been pasturing his cows in the meadow adjoining the tracks. Trainmen passing the farm each day must have seen them there and have understood that they would be driven back across the track to the barn before nightfall. The defendant was charged with knowledge of these facts. Lovett v. Railway, 85 N.H. 345, 349, 159 A. 132. Under such circumstances the jury was entitled to find that due care on the defendant's part required a relatively slow and careful operation of the train over the crossing at that particular hour, and that the running of the train at unusual speed and without warning of its approach constituted negligence.

The posted sign, to which reference has been made, comprised the printing in full of section 4 of chapter 380 of the Public Laws, relating to gates at private crossings, together with the following notice: "This is a Private Crossing, and the gates or bars must be kept closed. No signals are given by approaching trains. Trespassers are forbidden to enter or cross here. Any person using the crossing must close the gates or bars securely, and for failure so to do will be prosecuted to the full extent of the law."

The plaintiff's son testified that the notice had been placed on the fence about four years before. In answer to...