Greenwood v. Boston & M. R. R.

Decision Date27 June 1913
Citation88 A. 217,77 N.H. 101
PartiesGREENWOOD v. BOSTON & M. R. R.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Grafton County; Mitchell, Judge.

Case by Jeddie P. Greenwood against the Boston & Maine Railroad, for negligently causing the death of the plaintiff's intestate. Transferred on the plaintiff's exception to an order of nonsuit. Exception overruled.

Owen & Veazey and Charles B. Hibbard, all of Laconia, for plaintiff.

Stephen S. Jewett, of Laconia, Charles H. Hosford, of Woodsville, and Ira W. Thayer, of Woodsville, for defendant.

PEASLEE, J. The plaintiff's evidence tends to show that Greenwood was struck by moving freight cars while he was at work in the defendant's employ clearing snow from a switch. He was aware that the cars were near him and likely to be moved, and had been told to look out for them. He was a man of considerable experience in this work and familiar with the locality. No one saw the accident, and there was no testimony as to how it happened. There was evidence that the weather was cold, windy, and somewhat stormy, and that fresh snow upon the track made the cars run with less noise than when the track was clear. His failure to obey the injunction to look out for the cars had a part in causing the accident, and the question here is whether there is any evidence upon which to base a finding that while so acting, or failing to act, he was in the exercise of ordinary care. Various theories are suggested as to why he did not get out of the way; but no one of them is more probable than another, unless the weight of a presumption of careful conduct is added to the theories which are in the plaintiff's favor.

It is urged that an inference of care on Greenwood's part should be drawn because of the absence of motive to be careless, and from evidence that he was a careful man. It is now settled in this jurisdiction that no inference of the decedent's care can be drawn from the instinct of self-preservation. Wright v. Railroad, 74 N. H. 128, 65 Atl. 687, 8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949.

The evidence upon the question of Greenwood's habit was that one witness "never see but what he was careful about his work—always attended to his work"—and never saw him do anything that attracted the witness' attention as being careless. Another witness testified that he did not know whether Greenwood was a careful or careless man, and that from what the witness knew he would consider Greenwood...

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10 cases
  • Duggan v. Bay State St. Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 28, 1918
    ...Grand Rapids & Indiana Ry., 179 Mich. 433, 440, 146 N. W. 238;Ward v. Maine Central R. R., 96 Me. 136, 51 Atl. 947;Greenwood v. Boston & Maine R. R., 77 N. H. 101, 88 Atl. 217;Wright v. Boston & Maine R. R., 74 N. H. 128, 134, 65 Atl. 687,8 L. R. A. (N. S.) 832, 124 Am. St. Rep. 949;Bovee v......
  • Hussey v. Boston & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • February 2, 1926
    ...in the presence of charged wires tends to negative the idea of negligent contact. Parkinson v. Railroad, 61 N. H. 416, Greenwood v. Railroad, 77 N. H. 101, 88 A. 217. Any of the other suggested causes would, or might, negative the imputation of his negligence. None of these propositions is ......
  • Olsen v. Boston & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • June 25, 1925
    ...77 N. H. 419, 92 A. 738; Connelly v. Railway, 77 N. H. 280, 90 A. 788; Chabott v. Railway, 77 N. H. 133, 88 A. 995; Greenwood v. Railroad, 77 N. H. 101, 88 A. 217; Lord v. Railroad, 74 N. H. 39, 65 A. Ill; Batchelder v. Railroad, 72 N. H. 528, 57 A. 926; Myers v. Railroad, 72 N. H. 175, 55 ......
  • Smith v. Boston & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • March 5, 1935
    ...requested, that no inference of the care of the deceased should be drawn from the instinct of self-preservation. Greenwood v. Railroad, 77 N. H. 101, 88 A. 217. The natural desire for a continuance of life leaves the jury, in a case like this, to a pure conjecture whether the deceased was c......
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