Gates v. Boston & Me. R. R.

• Decision Date: 02 May 1944
• Citation: 37 A.2d 474
• Parties: GATES v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

37 A.2d 474

GATES

v.BOSTON & MAINE R. R.

Supreme Court of New Hampshire.

May 2, 1944.

Exceptions from Superior Court, Merrimack County; Lorimer, Judge.

Case to recover damages for death by Gladys Gates, administratrix of the estate of Edward M. Gates, deceased, against Boston & Maine Railroad. Verdict for defendant. On exceptions of plaintiff and defendant.

Judgment for defendant.

Case, to recover damages for the death of Edward M. Gates. Trial by jury, after view, and verdict for the defendant. Lorimer, J. presiding.

The case is transferred on plaintiff's exceptions to certain instructions to the jury, which include a ruling by the Court that Edward M. Gates, the operator of the truck which was in collision with defendant's gas electric motor car, was guilty of contributory negligence; and also on defendant's exception to the Court's denial of its motion for a directed verdict in its favor. The case was submitted to the jury on the last clear chance doctrine. The facts appear in the opinion.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiff.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord, for defendant.

BURQUE, Justice.

The accident happened March 4, 1940, at a grade crossing, known as Boyce's, in Canterbury, between 1:54 and 2:00 P. M. The weather was clear and visibility good. The railroad track was perfectly straight for at least 1/4 of a mile on each side of the crossing and ran approximately north and south. The highway for a distance of 1200 feet as it approached the crossing was practically straight, ran from northeast to southwest and intersected the crossing at an angle of approximately 55 degrees. The land lying northerly of the highway and easterly of the railroad track is all open grass land, except for a few clumps of bushes, not sufficiently high to interfere with the view, and none for a distance of 250 feet to the crossing. From a distance of 512 to 339 feet east of the crossing, a traveler in the highway has a clear view of the track 1287 feet north of the crossing; and from a distance of 221 to 72 feet, 1459 feet. This was the view available to Gates, who was traveling westerly in the road while the train was traveling southerly. From a point 700 feet away from the crossing the highway traveler has a good clear view of the same. Gates was somewhat familiar with the crossing. The train was on time and running at a speed of 40 miles per hour. The evidence most favorable to the plaintiff is that Gates was operating his truck at 25 to 30 miles per hour. The truck was struck on its right side about two to three feet from the rear end of the body. The right front end of the motor car came in contact with the truck.

It is conceded that the operator (hereinafter referred to as the engineer) of the gas electric motor car (hereinafter referred to as the train) sounded the whistle from the whistling post, 1320 feet away from the crossing. Whether he gave just the regulation two long and two short blasts, or gave a series of short blasts is in dispute. Taking the evidence most favorable to the plaintiff the engineer gave a series of short blasts from a point at least opposite the fifth pole north of the crossing, a distance of 647 feet away. The truck according to the witness who testified to the above was then a distance of about 150 feet from the crossing. On this supposition, the train in order to reach the crossing at the same time as the truck had to be traveling at least four times as fast as the truck, or at a minimum speed of 100 miles per hour. Such a proposition would be absurd and preposterous, to say the least, so much so that the plaintiff places no reliance thereon. This same witness testifies that the train and the truck appeared to be traveling at the same speed. If so it would follow that the truck then had to be at the same distance away from the crossing as the train was. Conceding the truck was traveling 25 to 30 miles per hour, it had to be at least 375 feet away from the crossing, for at 25 miles per hour it covered 37 1/2 feet per second, while the train traveling at a speed of 40 miles per hour covered 60 feet per second, and consequently required approximately 11 seconds to cover the 647 feet in the same length of time as it would take the truck to cover 375 feet; and at 30 miles per hour the truck traveled 45 feet per second, so had to be more than 450 feet away from the crossing when the train was 647 feet away. If this same witness' testimony is the correct version of the accident, to wit: that the train and the truck seemed to be traveling at the same rate of speed, then both were equi distant from the crossing.

Two other witnesses testified they heard anywhere from 10 to 15 sharp blasts of the motor car's whistle. From this line of testimony the plaintiff argues that it can be found the engineer saw Gates approach, even before the train reached a point 647 feet away from the crossing, and that he should have slowed the train down, and even stopped, if necessary to avoid the collision. In the absence of any other evidence to support such a claim, the contention is untenable. Ever since Gahagan v. Boston & M. Railroad, 70 N.H. 441, 443, 50 A. 146, 55 L.R.A. 426, it has been well established in this state that everything being equal, the railroad at a grade crossing has the right of way over highway travelers. Waldron v. Boston & M. Railroad, 71 N.H. 362, 365, 52 A. 443; Morier v. Hines, 81 N.H. 48, 51, 122 A. 330; Fraser v. Railway, 84 N.H. 107, 112, 146 A. 714; Morrison v. Boston & M. Railroad, 86 N.H. 176, 183, 164 A. 553; Rideout v. Boston & M. Railroad, N.H., 30 A.2d 488, 490; and that there is no duty imposed upon the railroad to slow down or stop its train when approaching a grade crossing until such time as it becomes apparent to the engineer that the highway traveler is not going to stop and give the train the right of way. Waldron v. Boston & M. Railroad, supra; Morier v. Hines, supra; Lavallee v. Boston & M. Railroad, 89 N. H. 323, 326, 197 A. 816; Craig v. Boston & M. Railroad, 92 N.H. 408, 32 A.2d 316. See also Stearns v. Boston & M. Railroad, 75 N.H. 40, 45, 71 A. 21, 21 Ann.Cas. 1166.

A finding that Gates was guilty of contributory negligence as a matter of law is compelling. The Presiding Justice was correct in so ruling. Either Gates did not look or listen to the signals or else he undertook to pass ahead of the train knowing of its approach. Failure to slacken his speed caused the witness who saw the train and the truck to exclaim: “*** ain't that truck going to stop,” perfect proof that Gates was either wholly inattentive or was going to try and get over the crossing ahead of the train. Whichever version is adopted we are confronted with the following: had Gates looked he would have seen. Not having slowed down or done anything for his own protection, the only reasonable conclusion that can be reached is that he did not look and consequently was negligent for not having done so. Collins v. Hustis, 79 N.H. 446, 447, 448, 111 A. 286; Hussey v. Boston & M. Railroad, 82 N.H. 236, 240, 133 A. 9; Bursiel v. Boston & M. Railroad, 82 N.H. 363, 369, 134 A. 40. Had he listened he would have heard. If he did not hear because the windows of his truck were closed, or because his truck made so much noise that he could not hear, or both, he was negligent for creating this perilous situation and for not taking precaution to protect himself against what should have been an expectable and anticipated danger. Archibald v. Boston & M. Railroad, 92 N. H. 184, 188, 28 A.2d 593. It is to be noted that the witnesses who testified to having heard the short blasts of the whistle were in the old depot, then converted into a home located on the south side of the road east of the crossing, and that the windows in the building were closed. And again “if *** he [Gates] observed the train and attempted to cross in...