Hurlich v. Boston & M. R. R. Weinstein

• Decision Date: 06 May 1924
• Docket Number: No. 1936.,1936.
• Citation: 125 A. 150
• Parties: HURLICH v. BOSTON & M. R. R. WEINSTEIN v. SAME.
• Court: New Hampshire Supreme Court

125 A. 150

HURLICH

v. BOSTON & M. R. R. WEINSTEIN

v. SAME.

No. 1936.

Supreme Court of New Hampshire. Strafford.

May 6, 1924.

Exceptions from Superior Court, Strafford County.

Two actions on the case, by Rebecca Hurlich as administratrix against the Boston & Maine Railroad, for compensation for death of Henry Hurlich and by Louis Weinstein against same defendant for loss of his motor truck which Hurlich was driving as plaintiff's employee. The jury disagreed, motions for nonsuit and directed verdict were denied, and defendant excepts. Exceptions overruled.

Mathews & Stevens, and S. F. Stevens, all of Somersworth, for plaintiffs.

Hughes & Doe, of Dover, and Snow & Cooper and C. E. Snow, all of Rochester, for defendant.

PLUMMER, J. The accident occurred on the Mill street railroad crossing in Milton. Hurlich was driving a Ford truck in an easterly direction over Mill street, and collided with a south-bound passenger train at that crossing. There is an embankment on the westerly side of the railroad track just north of the crossing, by which the view of trains going southerly is obstructed to travelers upon Mill street going easterly. This makes the crossing dangerous. There were no warning signs at the Mill street crossing as required by law. P. S. c. 159, § 4. The evidence of the plaintiffs tended to prove that as the train, which collided with the truck, approached the crossing, the whistle was not blown at the whistling post north of the crossing in accordance with the provision of the statute. P. S. c. 159, § 6. This evidence (Evans v. Railroad, 66 N. H. 194, 21 Atl. 105), together with the failure of the defendants to maintain warning signs at the crossing, would warrant a finding that the defendants were guilty of negligence in respect to the accident.

It is the contention of the defendants that Hurlich was guilty of contributory negligence, and therefore that the plaintiffs cannot maintain these actions. Whether the decedent was guilty of contributory negligence is a question for the jury, unless the evidence conclusively establishes that fact. Fuller v. Railroad, 78 N. H. 366, 367, 100 Atl. 546; Quimby v. Railroad, 79 N. H. 529, 530, 111 Atl. 302. The evidence relating to the conduct of Hurlich just prior to the collision was very meager. Only one witness saw him driving the truck towards the crossing. This witness had a view of the decedent as he approached the track for more than 20 feet, and until he was about 20 feet west of the crossing. She testified that he was driving very slowly, and it could be found from her evidence that he was looking north, the direction from which the train was coming. There was no evidence as to what the conduct of Hurlich was as he passed over the last 20 feet before reaching the crossing. The evidence was that when he was 20 feet west of the track he could see the train coming for 235 feet. The evidence of the defendants was that the train was approaching the crossing at from 20 to 25 miles an hour, but the plaintiffs claim the speed of the train was greater, and there was some evidence to substantiate their claim. Hurlich might have seen the train and thought it was safer to try and cross the track than it was to attempt to stop. The only evidence relative to the speed he was traveling was that he was driving very slowly. If he was going 10 miles an hour when he was within 20 feet of the crossing, he would have had less than two seconds in which to act before reaching the crossing. He may have erred in judgment, and might have avoided the collision if he had stopped. But "a mere...