Huntress v. Boston & M. R. R.

• Decision Date: 30 June 1890
• Citation: 66 N.H. 185,34 A. 154
• Parties: HUNTRESS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

34 A. 154

66 N.H. 185

HUNTRESS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Rockingham.

June, 1890.

Action by Huntress against the Boston & Maine Railroad. Verdict for plaintiff. Judgment on the verdict.

J. W. Emery and S. W. Emery, for plaintiff.

Frink & Batchelder, for defendants.

DOE, C. J. In the afternoon of May 19, 1887, the plaintiff's wife, M., in a carriage with her mother, on a highway crossed by the defendants' railroad at grade, attempted to cross the railroad in front of a train that was moving at a speed of from 35 to 40 miles an hour. There was no gate or flagman, but there were "warning signs," such as are required by Laws 1885, c. 98, §§ 1-3. The railroad was straight for a mile or more in the direction from which the train was coming. On the highway where M. was driving, from the nearest rail to a point 110 feet from it, there was an unobstructed view of the railroad for a long distance. At the whistling post, 80 rods from the crossing, the whistles required by law were given, and the bell was rung constantly from the post to the crossing. The horse was kind and gentle, and was driven upon the crossing without stopping. The carriage was struck by the locomotive, and M. and her mother were killed. The fireman, being engaged in putting coal in the firebox, did not see the horse and carriage until it was too late to slacken the speed of the train. The engineer, at his post, looking ahead on the right side of the engine, did not see the horse and carriage approaching the track on the left side until notified by the fireman. Assuming that there was no fault in the engineer or fireman, the question is whether it could properly be found that the collision was caused by want of due care on the part of the defendants, with no contributory want of due care on the part of M.

"If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other to avoid collision. * * * From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first. It is the duty of the wagon to wait for the train.' The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop, if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. * * * The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell, and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing. On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But, notwithstanding the hazard, the infirmity of the human mind, in ordinary men, is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them, —such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune. * * * Conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence. * * * The right of precedence * * * does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of approach. * * * Both parties are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case." Improvement Co. v. Stead, 95 U. S. 161, 164, 165.

Many common facts and prevalent conditions, amounting to general rules, within the ordinary experience or observation of jurors, or capable of being ascertained by reasoning, may be adopted by them as grounds of decision in cases not shown to be exceptions to such rules. "The presumption of sanity, whether it be a presumption of law or of fact, is, in one sense, a substitute for evidence. The general presumption of sanity is sufficient prima facie evidence of that fact to warrant a finding of sanity where no evidence is introduced tending to show insanity." "If it be merely a presumption of fact, it is nevertheless a presumption drawn from the common experience of mankind, which the court were well warranted in calling the attention of the jury to; and it is a presumption which the jury would inevitably have made, whether the court had referred to it or not." State v. Pike, 49 N. H. 399, 408, 444. "Natural presumptions are nothing else than deductions from general experience, and they therefore belong to the class of circumstantial evidence. They are founded in an assumption of the fact, from its consistency with known principles of human conduct, such as that a man * * * is aware of the natural consequences of his actions, with many others that are put as instances, to which I add the very natural presumption that he is always ready to take those measures which are obviously necessary to the protection of his property or interests. The presumption that he is endowed with a competent share of sagacity to perceive those measures is a reasonable one, and that he is so true to the instinct of his nature as to pursue them, being...