Greenwood v. Boston & M. R. R.

• Decision Date: 27 June 1913
• Citation: 88 A. 217,77 N.H. 101
• Parties: GREENWOOD v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

88 A. 217

77 N.H. 101

GREENWOOD

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Grafton.

June 27, 1913.

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...