Gahagan v. Boston & M. R. R.

• Decision Date: 15 March 1901
• Parties: GAHAGAN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

50 A. 146

70 N.H. 441

GAHAGAN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Strafford.

March 15, 1901.

Exceptions from Strafford county.

Action by Peter Gahagan against the Boston & Maine Railroad. From a judgment in favor of defendants, plaintiff brings exceptions. Exceptions overruled.

Case for negligence. The plaintiff was struck and injured by a train consisting of a locomotive with six freight cars attached, while he was attempting to cross the tracks in the railroad yard at Somersworth. The place of accident was not a highway, but was a crossing provided by the defendants for the use of pedestrians having business with the Great Falls Manufacturing Company, and was known as the "Countingroom Crossing." In going to the countingroom, the crossing was reached by some steps descending from Main street. From the foot of the steps, which point is 22 feet from the nearest rails, there is an unobstructed view of the track for 400 feet to the south. The plaintiff was a man about 43 years of age, in the full possession of all his faculties. He had had occasion to use the crossing for years, and knew that engines and trains frequently passed over it. The day of the accident was bright and clear. Between noon and 1 o'clock p. m., the plaintiff passed from Main street down the steps and upon the track at a walk of from 2 to 6 miles an hour. At the same time, an engine with six cars following it was running backward from the south towards the crossing at the rate of from 6 to 15 miles an hour. Just as the plaintiff stepped on the first rail, he was struck by the engine and injured. Generally, the engine bell was rung, while the whistle was sometimes sounded, for this crossing. The plaintiff knew it was usual to ring the engine bell. A danger whistle was sounded from the engine at the time or immediately before the plaintiff was struck, but there was evidence tending to prove that no other warning of the approach of the train was given on this occasion. The engineer testified that when about 150 to 200 feet from the crossing he saw the plaintiff approaching the track at about 2 1/2 miles per hour; that the train was running about 6 miles an hour; that be kept watch of the plaintiff until he got within a few feet of the track, when he whistled. The plaintiff testified that he did not look for an approaching train, because he expected to hear the bell or whistle if one was coming; that he did not remember whether he thought of that at the time; that he walked right along; that he did not listen for a train; that he made no effort to ascertain whether a train was coming or not; that he walked at his usual rate of speed onto the track, continuing to walk until he was struck, and heard nothing until just as he was struck. The defendants' motion for a nonsuit was granted, subject to exception.

Eastman & Hollis, for plaintiff.

John Klvel and James A. Edgerly, for defendants.

PARSONS, J. The crossing upon which the plaintiff was injured was not a public highway, but was maintained by the defendants for the use which the plaintiff was attempting to make of it. He had the right to cross upon it. The defendants had also the right to use it for the passage of their trains. As each could not exercise their common right to the use of the crossing at the same moment of time without serious injury to one or both as the inevitable result, each party was bound to exercise care to prevent such attempt at the simultaneous exercise of their common right. As the right to the use was equal, an equal obligation to exercise care rested upon both. Huntress v. Railroad Co., 66 N. H. 185, 34 Atl. 154, 49 Am. St. Rep. 600; Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. But, while the obligation to exercise care was equal, each was not bound to the same action to perform that obligation. Since due care is what a person of ordinary prudence would do under all the circumstances of the particular case, the conduct of such prudent person in the use of the crossing would be varied by the widely different conditions attendant upon the passage over it of a foot traveler and a railroad train. Hall v. Brown, 54 N. H. 495, 499. The precautions to be taken in each case are affected by the character of the other's use. If each party came to a full stop just before reaching the common way, the entire danger would be avoided. If such stop were equally easy or difficult in each case, prudence would require the same course of each as is now required in certain cases in the use of a common crossing by passenger trains on different railroads. Pub. St. c. 159, § 10. But as the foot passenger can, as a practically invariable rule, stop almost instantly and without inconvenience, while the train cannot, as a rule, stop, except in a considerable distance, and then only with difficulty and inconvenience, it would be unreasonable to expect or require that when both are approaching the common point the train should stop and allow the foot passenger to pass. The train has the precedence and the right of way. Improvement Co. V. Stead, 95 U. S. 161, 24 L. Ed. 403. As the train cannot stop, it is the railroad's duty to give notice of its approach by warning signals, that the traveler upon the other way may stop and allow it to pass. This is so clear that the character of the required warning for highway crossings has been defined by statute. Pub. St. c. 159, § 6. On the other hand, the foot passenger or traveler by other conveyance, whether drawn by horses, or propelled by the rider (as a bicycle) or by self-contained motive power, must take such precautions in approaching the point of conflicting use as reasonable prudence dictates to prevent the joint occupancy at the same time of the common way. Both parties being bound to exercise care, they are each guilty of negligence if they do not. For an injury due to the negligence of both, neither can recover of the other (Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 150), while the party without fault can recover of the other whose fault caused the collision from which the injury resulted. From the fact of injury no presumption arises as to the guilt or innocence of either party. The plaintiff is, therefore, in suits for injury upon a railroad crossing, as in all cases for negligence, bound to prove that his injury was not due to his own fault, but was caused by the fault of the defendant. State v. Manchester & L. R. Co., 52 N. H. 528; Lyman v. Railroad Co., 66 N. H. 200, 20 Atl. 976, 11 L. R. A. 364; Roberts v. Railroad Co., 69 N. H. 354, 355, 45 Atl. 94. Hence the plaintiff, to entitle him to submit his case to the jury, must produce evidence sufficient to render reasonable a finding that he was free from fault. Whether the plaintiff was or not without fault is in all cases a question of fact. But, as facts may be established by inferences fairly deducible from circumstances proved in evidence, a plaintiff is not required to furnish direct, affirmative evidence of his exercise of care, if such care can fairly be inferred from the whole case. Hutchins v. Macomber, 68 N. H. 473, 44 Atl. 602. "If there is any substantial evidence, the jury are to decide upon the balance of probabilities. They are to determine what amount or weight of competent evidence is sufficient or insufficient to convince their minds and determine the question between the parties. * * * But this does not authorize the jury to determine the question without evidence." Deschenes v. Railroad Co., 69 N. H. 285, 289, 46 Atl. 467; Roberts v. Railroad Co., 69 N. H. 354, 355, 45 Atl. 94. "The law demands proof, and not mere surmises." Bond v. Smith, 113 N. Y. 378, 385, 21 N. E. 128.

In the present case the plaintiff's conduct is fully disclosed. As to his acts or omissions there is no dispute. The only question is whether the undisputed facts afford evidence of care. The plaintiff, before attempting to cross the track, in order to fulfill the burden of care resting upon him, was bound "to take such precautions to learn of the approach of trains as men of ordinary prudence would take in like circumstances." Smith v. Railroad Co., 70 N. H. 53, 47 Atl. 290. What prudent men would or would not do in a given situation depends upon all the circumstances disclosed. "The railroad cannot be held to the same speed, or the traveler to the same conduct, in all cases. What would be proper conduct in one situation might be improper in another. Hence no definite rule or test can be laid down, but each case must be governed by the facts appearing in it." Roberts v. Railroad Co., 69 N. H. 354, 45 Atl. 94. An exact definition of care and negligence, establishing what acts are careful and what acts or omissions are careless at all times, in all places, and under all circumstances, would be a great convenience in judicial administration; but, unless the rule that due care is the care of the ordinarily prudent person under all the circumstances is abrogated, it can never be said logically that the mere presence or absence of certain evidentiary facts will always determine the question, without reference to other facts appearing in particular cases. Bass v. Railway Co., 70 N. H. 170, 46 Atl. 1056. Questions of fact, that depend upon inferences of fact from other evidentiary facts proved, are less likely to present questions about which reasonable men cannot differ than questions which can be proved by direct evidence. But cases involving from evidentiary facts an inference of fact like negligence or proximate cause, though from the nature of the question more generally for the jury, do not differ in principle from other cases upon the question whether there is anything for the jury. The proposition that such questions are generally for the jury is, as was said in McGill v. Granite Co., 70 N. H. 125, 46 Atl. 684, "necessarily subject to the limitation affecting the submission of all questions of fact to the jury,—that if, on the evidence,...