Fraser v. Berlin St. Ry.

• Decision Date: 04 June 1929
• Citation: 146 A. 714
• Parties: FRASER v. BERLIN ST. RY. MASTERSON v. SAME.
• Court: New Hampshire Supreme Court

146 A. 714

FRASER

v. BERLIN ST. RY.

MASTERSON

v. SAME.

Supreme Court of New Hampshire. Coos.

June 4, 1929.

Transferred from Superior Court, Coos County; Burque, Judge.

Separate actions by James A. Fraser and by Pauline Masterson, administratrix, against the Berlin Street Railway. Transferred on defendant's exceptions to the denial of directed verdicts in its favor. Judgment for defendant in the first case, and judgment on the verdict for plaintiff in the last case.

See, also, 139 A. 753.

Actions for negligence. Trial by jury and verdicts for plaintiffs. A Ford sedan owned and driven by Fraser, herein called the plaintiff, collided with a street car of the defendant in the village of Gorham on April 9, 1926. The intestate of the other plaintiff was a passenger in the sedan. Transferred by Burque, J., on the defendant's exceptions to the denial of directed verdicts in its favor in each case. The material facts appear in the opinion.

Murehie & Murchie and Alexander Murchie, all of Concord, for plaintiffs.

Edmund Sullivan, of Berlin, and Jesse F. Libby, of Gorham, for defendant.

ALLEN, J. In Gorham village Main street runs westerly towards Berlin. The car track runs close to the north side of the macadamized part of the street. Mechanic street intersects with Main street on its north side. The accident happened after dark at about 7:30 in the evening on a clear night. The plaintiff, driving his sedan westerly on Main street, turned to his right into Mechanic street. The electric car, coming from Berlin, ran into the sedan at the Mechanic street crossing.

The plaintiffs claim negligence in the motorman's failure to ring the gong while approaching the crossing and in the lighting of the car as insufficient to warn travel it might meet. They also rely on the last chance doetrine. The defendant claims there was no evidence of its negligence, and that the accident was wholly due to the plaintiff's fault. No claim is made of any negligence on the intestate's part.

Failure to sound the gong at the crossing tended to show careless operation of the car towards highway travel. Houses near the corner of Mechanic street shut off the view for travel entering Main street, and there was an order and custom for cars to sound the gong before reaching the crossing. The plaintiff knew of the custom, was aware that it was time for a car, and was listening. Under these facts due care towards the plaintiff might require the warning. Minot v. Railway, 73 N. H. 317, 321, 61 A. 509; Chabott v. Railway, 77 N. H. 133, 137, 88 A. 995.

The record discloses evidence that the gong was not rung. Aside from the plaintiff's own testimony that he was listening for a car and did not hear the gong, a passenger on the car left it near the Willis house, a distance of about 400 feet from Mechanic street. He testified that after leaving the car and while walking on Main street he heard the crash of the collision and "it came right into my [his] mind" that the collision was due to the failure to ring the gong. This immediate thought upon hearing the crash warranted the inference that he had been listening and noticed that the gong was not rung. It was thus evidence of a positive character, and not of failure to notice when no attention was given. The reliability of the evidence was for the jury's consideration, and it is to be held entitled to belief. It was substantially the same as the evidence considered in Phillips v. Railroad, 81 N. H. 483, 484, 485, 128 A. 809, of a witness who while a passenger on a train, although not aware of the train's approach to a crossing, yet had a habit of observing whether crossing signals were given. The rule in situations where the evidence of nonperformance of duty is negative or too neutral to be given reliance is therefore not available to sustain the claim of insufficient proof, and the issue of failure to sound the gong was to be submitted.

There was evidence also that the plaintiff would have heard the sound of the gong in plenty of time to stop the sedan before reaching the crossing. While the sedan was noisy like all automobiles of its make, the plaintiff on an occasion in the winter previous with conditions substantially the same as those at the time of the collision had heard the gong of an approaching car, and it is a fair inference without evidence of explanatory differences on the two occasions that, if he heard it on one occasion, he would have on the other.

The plaintiff was about three rods from the crossing when he began to make the turn to enter Mechanic street. At his speed of 10 miles an hour it took him three seconds to reach the crossing. If the car had a speed of 15 miles an hour, it was then about four rods from the crossing, a distance at which it may fairly be said the gong should have been sounded. The case is thus different from Morier v. Hines, 81 N. H. 48, 122 A. 330, in which it was held that the plaintiff was not entitled to reliance in failing to hear a locomotive whistle for which he was listening at a point where no whistle was required.

The electric car was equipped with a 110 volt electric headlight contained in a reflector set 4 or 5 feet above the ground in the center of the front of the car. The car also carried a searchlight, but under municipal order it was shut off while the car was within the village limits. It was also required to be shut off at the time under P. L., c. 255, § 7. The headlight lighted the track for about 100 feet ahead and for about 3 feet each outer side of the rails. The curtains of the car vestibule were closed, and the car itself might not be readily and clearly visible to one facing it as it approached until it was near at hand. But while the car was in motion, the headlight gave notice of a moving and approaching object. If from the position of the car on the left side of the roadway the headlight did not make it apparent that it was the headlight of a car, it at least showed that it was either a car or a motor vehicle that was coming towards the plaintiff.

Main street was well lighted. A 250 volt electric light was placed at the corner of Main and Mechanic streets, another one about 225 feet farther along towards Berlin, a small one about 230 feet still farther along, and another one of 250 volts about 200 feet beyond the smaller one. The large lights lighted the street so as to show moving objects for a range on the street of about 200 feet and the small one for about 100 feet. These lights were all on the north side of the street and almost directly over the car track. This section of Main street and the track was part of a straight stretch with a practically level grade, and at the time there was nothing to obscure the lights or a view of the track. The night was clear and there were no vehicles between the plaintiff and the car.

The sedan had headlights which it would seem were defective because they did not throw a light visible 200 feet ahead as required by P. L., c. 103, § 5. How far the lights would extend ahead and spread out...