Haselton v. Portsmouth, K. & Y. St. Ry.

• Decision Date: 18 December 1902
• Citation: Haselton v. Portsmouth, K. & Y. St. Ry., 53 A. 1016, 71 N.H. 589 (N.H. 1902)
• Parties: HASELTON v. PORTSMOUTH, K. & Y. ST. RY.
• Court: New Hampshire Supreme Court

53 A. 1016

71 N.H. 589

HASELTON

v. PORTSMOUTH, K. & Y. ST. RY.

Supreme Court of New Hampshire. Merrimack.

Dec. 18, 1902.

Exceptions from superior court.

Action by John B. Haselton against the Portsmouth, Kittery & York Street Railway.Verdict for plaintiff, and defendants bring exceptions.Exceptions overruled.

The defendants operate a street railway from Portsmouth to York Beach, Me.Along the beach there is a plank sidewalk, 5 feet in width, which is elevated above the ground from 6 to 20 inches, and is unralled throughout its entire length.At a place called the "Willows" there is a sharp grade and curve in the railway.Just beyond the Willows, and at the end of the grade and curve, the company regularly stopped its cars to take on and discharge passengers; and at this point there is a platform which extends from the sidewalk toward the railway.The platform is about 20 inches wide and 22 feet long, and is not railed.It did not appear by whom the platform was constructed or maintained, but the evidence showed that it was used by the street railway.On the afternoon of July 24, 1899, the plaintiff, with others, was waiting at the platform for a car.When the car arrived, the plaintiff, who was accompanied by an aged friend, looked for seats; and, not finding any in the front of the car convenient to his purpose, he walked along the platform toward the rear end.The plaintiff did not observe that the car, Which was 41 feet long, extended back about 19 feet beyond the end of the platform.After assisting his companion to a seat, the plaintiff walked further back, in order to take a seat behind him; and in so doing he stepped off the end of the platform, was thrown to the ground, and received the injuries complained of.The plaintiff knew there was no railing at any part of the sidewalk along the beach, and was acquainted with the situation and elevation of the walk in a general way.He went over the walk and passed by the place of the accident on the day previous.The planks of the walk and the running-board of the car were not of the same color.The conductor made no an-nouncment when the car stopped or afterward and gave no warning to passengers.The defendants' cars stop at any point on signal, grades and curves excepted.At the close of the plaintiff's evidence the defendants moved for a nonsuit, and, at the close of all the evidence, that a verdict be directed in their favor.Both motions were denied, subject to exception.The defendants requested the following instructions, which were denied, subject to exception: "The plaintiff, not having come in physical contact with the car at the time he fell, was not a passenger, and the law is that the defendants were bound to use only ordinary care for his safety.If you find that the defendants did not construct the platform, and that it was a part of the highway, then, it being the place at which the plaintiff chose to wait for and board the car, the street railway company had a right to suppose he knew where he was, and the character of the place, and owed him no duty, except not to willfully or negligently do him some active injury.Hence, if you so find, your verdict should be for the defendants.If you find that the cars stopped at signal anywhere, except on the grade, and the plaintiff chose his own place to board the car, the company...