Evans v. Concord R. Corp.

• Decision Date: 25 July 1890
• Citation: 21 A. 105,66 N.H. 194
• Parties: EVANS v. CONCORD R. CORP.
• Court: New Hampshire Supreme Court

21 A. 105

66 N.H. 194

EVANS

v. CONCORD R. CORP.

Supreme Court of New Hampshire. Rockingham.

July 25, 1890.

Exceptions from Rockingham county.

This was an action for carelessly causing the death of the plaintiff's intestate by running upon her with a locomotive and train of cars at a highway crossing, in Epping, April 23, 1888. At the close of the plaintiff's evidence, a nonsuit was ordered on motion of the defendants; and the plaintiff excepted.

Drury & Peaslee, for plaintiff.

Chase & Streeter and Marston & Eastman, for defendants.

SMITH, J. There was competent evidence for the jury upon the question of due care on the part of the plaintiff's intestate. Her fear of the crossing; her habit of waiting for trains to pass before leaving home; the fact that she had a safe horse; that the train was a special one run near the time of a regular train; that she had her watch with her; that she stopped at the foot of the rise; that the view was to some extent obstructed; that the warning signal was not given as required by statute; and the fact that she regarded the crossing as a place of danger,—were facts from which it was competent for the jury to find that she was using ordinary care in looking and listening for the approach of a train. The question is not how much weight should be given to the evidence, but whether it was sufficient for the jury to find for the plaintiff. State v. Railroad Co., 52 N. H. 528; State v. Railroad Co., 58 N. H. 408, 410; Clark v. Railroad Co., 64 N. H. 323, 324, 10 Atl. Rep. 676. In Nutter v. Railroad Co., 60 N. H. 483, 485, it was said: "The plaintiff's belief in the defendant's knowledge and presumed obedience of the speed law may have been a sufficient excuse for his want of vigilance in not observing the approaching train, and whether or not it was a sufficient excuse is a question of fact, which was properly submitted to the jury." In this case, all the evidence shows that the whistle was not sounded until after the whistling-post, located 59 1/2 rods from the crossing, had been passed. It is argued that it did not matter to Mrs. Evans that the post was located less than 80 rods from the crossing, nor that the engineer did not sound the whistle until he had passed it, because she had knowledge of the actual location of the post and of the habitual neglect of the engineers seasonably to sound the whistle; and that, "under the circumstances disclosed, it would not have been reasonable for her to act upon the belief...