Duggan v. Boston & M. R. R.

• Decision Date: 07 May 1907
• Citation: Duggan v. Boston & M. R. R., 66 A. 829, 74 N.H. 250 (N.H. 1907)
• Parties: DUGGAN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

66 A. 829

74 N.H. 250

DUGGAN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

May 7, 1907.

Exceptions from Superior Court, Hillsborough County; Pike, Judge.

Action by Joseph H. Duggan, as administrator, etc., against the Boston & Maine Railroad. A verdict was rendered in favor of the plaintiff, and the case was transferred on defendant's exception to the denial of a motion for a directed verdict in its favor. Exception overruled.

A highway in East Manchester, known as the "Hall Road," crosses the defendants' railroad at grade. The highway runs north and south. The railroad is built on a curve, but its general direction is east and west, and its grade is descending in both directions from the crossing. On the east side of the highway and north of the railroad is a large building known as the "wrapper factory"; its southwest corner being 41 feet north of the northerly rail. The south line of the building, if produced, would intersect the center of the railroad 436 feet east of the crossing; but at a point 11 feet nearer the track there is an unobstructed view of the railroad toward the east for more than 500 feet. For a long time a large number of small children had been accustomed to play on and near the crossing. The plaintiff's intestate either had joined or was about to join in a game of hide and seek at the crossing when she was killed. She was 9 1/2 years old, of average size and intelligence, but very nervous when near a moving train. She left her home, which was located north of the crossing, about 7 o'clock in the evening of May 30, 1903, and went directly to the northwest corner of the factory, where she stopped a few minutes and ate some bread and butter. She was next seen at the southwest corner of the factory, where she looked down the railroad toward the east, and then, stepping a few feet nearer to the crossing, she looked down the railroad toward the west. She then started to run across the tracks, looking straight ahead, but was struck by a train from the east and killed when nearly over tie crossing. At the time she was seen looking toward the east, the engine was from 500 to 600 feet from the crossing, and approaching it at a speed of from 40 to 50 miles an hour. Nothing was done to notify the child of the approach of the train, nor was any effort made to check its speed until it was within a few feet of the crossing. If the brakes had been applied when the engine was 250 feet distant from the crossing, the accident would not have happened. The engineer had an unobstructed view of the crossing, and the space between it and the...