Gage v. Boston & M. R. R.

• Decision Date: 01 April 1913
• Citation: 90 A. 855,77 N.H. 289
• Court: New Hampshire Supreme Court
• Parties: GAGE v. BOSTON & M. R. R. SAWYER v. SAME.

90 A. 855

77 N.H. 289

GAGE

v. BOSTON & M. R. R.

SAWYER

v. SAME.

Supreme Court of New Hampshire. Merrimack.

April 1, 1913.

Actions by George C. Gage and Thomas E. Sawyer against the Boston & Maine Railroad Company, which were consolidated. There were verdicts for plaintiffs, and defendant excepted to the denial of its motions for nonsuits and the direction of verdicts in its favor. Exceptions sustained.

Case for negligence. The actions were tried together and resulted in verdicts for the plaintiffs. In each case the defendant's motions for a nonsuit and the direction of a verdict in its favor were denied, subject to exception.

The plaintiffs hired one Spaulding to take them in his automobile from Franklin to Laconia and return. On the return trip they left Laconia about 11 o'clock in the evening. Shortly after midnight, at a crossing north of Tilton, the automobile collided with the fourteenth car of a slowly moving freight train of the defendant. There were no gates, lights, or crossing tender at the crossing. There was evidence that it was a dark night, and somewhat foggy, which prevented the chauffeur from discovering the train upon the crossing until he was within about 35 feet of it. He testified that he was then going about 14 miles an hour, and that when running at that rate he could bring his machine to a stop in about 27 feet, but for some reason he was not able to do so at the time of the collision.

Martin & Howe, of Concord, for plaintiffs. Streeter, Demond, Woodworth & Sulloway and William W. Thayer, all of Concord, for defendant.

WALKER, J. What duty did the defendant owe to the plaintiffs at the time of the collision which it failed to observe, and the breach of which was the proximate cause of the injuries they suffered? The burden was on them to prove that the defendant was negligent in its management of the train at the crossing, and that its negligence in that respect was a proximate cause of the collision. At the trial the plaintiffs' contention was that the defendant's negligence could be found from its omission to provide gates with lights at the crossing, or in not having at that place a crossing tender to warn travelers that the crossing was occupied by the train.

There is no contention that these precautions would be necessary in the daytime, or at any time when the occupation of the crossing by one or more cars would be visible to a traveler in time to allow him to stop before reaching the crossing. When cars are upon a crossing under such circumstances the fact that they are there is a sufficient warning to the traveler upon the highway that he cannot occupy the crossing at the same time. No other signals or warnings are necessary or required in the absence of a statute imposing such a duty upon the railroad. As there is no statute or municipal regulation requiring the defendant to provide lights at this crossing the mere fact that there were none on the night of the accident does not prove the negligence of the defendant. It is merely evidence to be considered on the question of its reasonable conduct under the circumstances existing at the time of the accident If, in the exercise of due care and prudence with reference to travelers on the highway who were approaching the crossing, other precautions were reasonably necessary than such as were afforded by the presence of the train on the crossing, the absence of a light might be sufficient evidence of the defendant's negligence. Ordinary care in a given case might require that such a signal or an equivalent one should be exhibited as a warning of danger to travelers using the highway in a reasonable and proper way at the time of the accident. Whether such a warning should be given is not conclusively settled in the negative when it appears that there is no statute requiring lights at the crossing in question. The common-law obligation of the exercise of ordinary care by both parties when seeking to occupy a railroad crossing at the same time (Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426) still remains, which may require the exhibition of lights for the benefit of the plaintiff under the circumstances of the particular case.

"It was the duty of the defendants to use ordinary care in the management of their locomotives and cars at or near the crossing, whether moving or stationary; and for any injury to the plaintiff resulting from such want of care they were liable." Lewis v. Railroad, 60 N. H. 187, 189; Baton v. Railroad, 129 Mass. 364; Giacomo v. Railroad, 196 Mass. 192, 81 N. E. 899; Houghkirk v. Company, 92 N. Y. 219, 44 Am. Rep. 370; Martin v. Railroad, 20 Misc. Rep. 363, 45 N. Y. Supp. 925; Northern Central Ry. v. Medairy, 86 Md. 168, 37 Atl. 796; Evansville, etc., R. R. v. Clements, 32 Ind. App. 659, 663, 70 N. E. 554; Heddles v. Railway, 74 Wis. 239, 255, 42 N. W. 237; Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 1. Ed. 485.

The defendant's cars were rightfully occupying the crossing, and the trainmen were exercising due care, so far as the management of the train in approaching and passing over the crossing is concerned. The plaintiffs were not injured by being run into by the defendant's locomotive, but by running into the defendant's freight car as it was slowly passing over the crossing. They were not injured by any mismanagement of the train. If it is conceded that the trainmen were chargeable with knowledge that automobiles were frequently driven over the crossing in the evening, were they also chargeable with knowledge that they were liable to be driven at such a rate of speed that they could not be stopped before reaching the crossing after the cars upon it became visible? Suppose, instead of the place being the intersection of a highway and the railroad, it had been the crossing of two highways, and the plaintiffs had run into the side of a load of logs which were being transported over the crossing; the driver of the logging team would have the same duty to exercise care for the benefit of the plaintiffs that the trainmen had and the care he would be bound to exercise would be commensurate with the apparent danger to travelers on the other highway caused by his occupation of the crossing with a heavily loaded team. If the driver of the approaching automobile could see the obstruction in time to avoid colliding with it, reasonable men could not find that it was the duty of the driver of the team to have a lighted lantern on the side of his load toward the automobile as a warning that the crossing was occupied, or to use some other extraordinary precaution to convey that information. In deciding what, if anything, he ought to do, he would be justified in assuming that the approaching traveler would not unnecessarily run into his load of logs. Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Waldron v. Railroad, 71 N. H. 362, 365, 52 Atl. 443; Lord v. Railroad, 74 N. H. 39, 65 Atl. 111.

For similar reasons, the trainmen in the case at bar were justified in acting upon the assumption that an automobile would not be unnecessarily driven into the side of their train. The automobile in which the plaintiffs were riding was equipped with headlights. They threw a light ahead so that the driver, as he testified, saw the train when he was about 35 feet from it The plaintiffs testified that when they first saw the train it was 50 or more feet away. They were going at the rate of about 14 miles an hour, and the driver testified that ordinarily he could stop the machine in about 26 feet when going at that rate. He also testified that as soon as he saw the train he did everything he could to stop but without success until he collided with the car. He was an experienced motorman, and testified for the plaintiffs. Upon this state of the facts there is no explanation or cause assigned why the automobile did not come to a stop before it reached the crossing. The driver saw the train in season to avoid a collision, and resorted to all known means to bring the machine to a stop. He does not say that he miscalculated the distance to the train or the speed at which he was going. In other words, the plaintiffs' claim is that the defendant is liable, although the automobile for some reason did not respond to the application of the brakes as readily as under the circumstances it ordinarily would have done.

There was one other witness who testified as an expert chauffeur that, going at the rate of 16 miles an hour, he might not be able to stop his machine inside of 40 feet. This testimony, if true, is of very little account in this case, for it relates to a different machine than the one in question; whether it was a larger or smaller one does not appear. This fact would seem to be important, since it is evident that the weight of a moving vehicle has some relation to its momentum. Besides, the rate of speed the witness was considering was 16 miles an hour, while the plaintiffs, according to their testimony and that of the chauffeur, were going at the rate of 14 miles an hour. What the witness could do with another and different machine going at a different speed is not very important, in view of the uncontradicted statement of the plaintiffs' chauffeur that Ms lights were of sufficient brilliancy to enable him to come to a stop before running into an obstruction like a freight car in the...