Hughes v. Boston & M. R. R.

• Decision Date: 01 April 1902
• Citation: 71 N.H. 279,51 A. 1070
• Parties: HUGHES v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

51 A. 1070

71 N.H. 279

HUGHES

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

April 1, 1902.

Exceptions from Belknap county; before Justice Peaslee.

Action by Edward L. Hughes against the Boston & Maine Railroad. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled.

At the close of the plaintiff's opening statement to the jury, a nonsuit was ordered upon motion of the defendants, subject to the plaintiff's exception. The opening statement, so far as material, was substantially as follows: The plaintiff, at the time between nine and ten years of age, on June 25, 1900, while walking along the railroad track from the Lakeport station to Messer street crossing, at a point one-fourth of a mile from either station or crossing, found lying beside the track a railroad torpedo. He picked it up, put it upon the rail, struck it with a rock, and was injured from the resulting explosion. For many years the railroad has permitted people, including children, to pass up and down over these tracks. The portion of the railroad between Messer street crossing and Lakeport station is a common thoroughfare. A signal torpedo such as the plaintiff found is a very dangerous explosive. The defendants knew the use that was being made of their track by people, including children, who were constantly passing. Upon being inquired of as to what the evidence would be to prove the defendants' fault, counsel stated it would be that already recited; that this was a torpedo of a kind had and used only by the railroad; and that from this he should argue that it was left where found, or in some improper place, by the defendants' servants. He also offered to prove certain rules of the defendant railroad, which required all trainmen to be supplied with torpedoes, and directed their use as signals by placing and leaving them upon the rail in certain contingencies. Rule 15a is as follows: "Torpedoes must not be placed near stations or road crossings where persons are liable to be injured by them."

Shannon & Young and E. A & C. B. Hibbard, for plaintiff.

Jewett & Plummer and Frank S. Streeter, for defendants.

PARSONS, J. If the unexploded torpedo lying beside the track rendered the defendants' premises unsafe for the use which the plaintiff, a boy nine years old, was attempting to make of them, that fact does not establish that the defendants were guilty of negligence. Actionable negligence is the breach of a duty owed by the defendant to the plaintiff. Where there is no duty there is no negligence. McGill v. Granite Co., 70 N. H. 125, 127, 46 Atl. 684. "The ownership of laud imposes no duty upon the owner for the benefit of trespassers." Davis v. Railroad, 70 N. H. 519, 520, 49 Atl. 108. Hence, in the words of the plaintiff's brief, a landowner "is not obliged to fence a disused reservoir while filling it up (Clark v. City of Manchester, 62 N. H. 577), or a manufacturing corporation to stop its machinery, or forcibly to eject a trespassing child (Buch v. Manufacturing Co., 69 N. H. 257, 44 Atl. 809, 76 Am. St. Rep. 163), or a railroad to lock its turntables or discover chance trespassers (Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St Rep. 396; Shea v. Railroad, 69 N. H. 361, 41 Atl. 774)," or to fence its right of way for the protection of an infant trespasser (Casista v. Railroad, 69 N. H. 649, 45 Atl. 712). These propositions are admitted by the plaintiff upon the authorities in this state, and from them it follows that a railroad is not in fault for not keeping its right of way clear of obstructions which may render the place dangerous to an infant trespasser. This much appears to be conceded. But it is claimed that "throwing away poisons or explosives is an altogether different case"; that carelessness in the control of explosives and poisons "is a breach of duty to the public and to the individual injured." The claim is understood to stand upon the ground that, though a landowner is not liable for failure to take active measures for the protection of trespassers, according to the authorities above cited, he is liable for injuries intentionally or wantonly inflicted. Davis v. Railroad, 70 N. H. 519, 520, 49 Atl. 108; Frost v. Railroad, 64 N. H. 220, 222, 9 Atl. 790, 10 Am. St Rep. 396. At the close of the opening, counsel was asked what the evidence would be to prove the defendants' fault. The ruling granting the nonsuit was, in effect, that the facts stated were insufficient to authorize the inference that the plaintiff's injuries were either intentionally or wantonly inflicted by the defendants. The ruling was correct. The only facts suggested were the finding of the torpedo upon the defendants' right of way beside the track, at a point one-fourth of a mile from a crossing or station; that the torpedo was of a kind used only by the railroad; and the inference which could be made from...