Johnson v. Irector Gen. of railroads

• Decision Date: 06 May 1924
• Docket Number: No. 1922.,1922.
• Citation: 125 A. 147
• Parties: JOHNSON v. IRECTOR GENERAL OF RAILROADS.
• Court: New Hampshire Supreme Court

125 A. 147

JOHNSON

v. IRECTOR GENERAL OF RAILROADS.

No. 1922.

Supreme Court of New Hampshire. Merri mack.

May 6, 1924.

Exceptions from Superior Court, Merrimack County; Sawyer, Judge.

Action by John M. Johnson against the Director General of Railroads. Plaintiff's requested instructions were denied, and he excepts. Exceptions overruled.

Case to recover for personal injury received in a collision upon a highway grade crossing between a Ford roadster driven by the plaintiff and a train of the Boston & Maine Railroad. Trial by jury with a verdict for the defendant. At the close of the evidence, the defendant moved that a verdict be directed for him, which motion was denied, and he excepted. The plaintiff requested the court to instruct the jury as follows:

(1) If the defendants, upon their discovery that the plaintiff was in danger, could by the exercise of ordinary care have avoided the accident, the defendants are liable, provided the plaintiff, Johnson, upon discovering the danger, could not have avoided the injury, even though the plaintiff, Johnson, may have been negligent in getting into a position of danger.

(2) The law does not justify an avoidable injury to another. Even though the plaintiff may have been negligent in seeking to cross the track in front of the approaching car, it was still the duty of the defendants' servants in charge of the car to exercise ordinary care to avoid injury to the plaintiff.

(3) If the defendants' trainman saw the plaintiff, Johnson, and knew that he was in a position of danger, or was likely to be, from which through want of consciousness of the danger the plaintiff could not save himself, then, if by the exercise of ordinary care the defendants' trainman could have avoided the accident, it was his duty to do so, and, if he did not, the defendants would be liable, even though the plaintiff may have been careless in getting into the position of danger.

(4) If ordinary care on the part of the defendants' trainman, after he knew of the plaintiff's danger, would, and ordinary care on the part of the plaintiff after he was conscious of the danger would not, have prevented the accident, then the defendants are liable.

(5) If the defendants had notice that the plaintiff was about to cross their track in season by the exercise of ordinary care to have refrained from entering upon the crossing with their train, and the defendants failed to exercise such care, and in consequence of such failure the plaintiff was injured, then the defendants would be liable even though the plaintiff may have been negligent in entering the crossing as he did.

The instructions requested were not given, and the plaintiff excepted. Reserved and transferred by Sawyer, J.

Nathaniel E. Martin and Robert W. Upton, both of Concord (Edward C. Niles, of Concord, orally), for plaintiff.

Demond, Woodworth, Sulloway & Rogers, of Concord (Jonathan Piper, of Concord, orally), for defendant.

PARSONS, C. J. The court may properly refuse to give particular instructions which are not warranted by the evidence (Richmond v. Bethlehem, 79 N. H. 78, 80, 104 Atl. 773; Osgood v. Maxwell, 78 N. H. 35, 38, 95 Atl. 954; Challis v. Lake, 71 N. H. 90, 95, 51 Atl. 260) while it is reversible error to submit to the jury an issue upon which there is no evidence (Benoit v. Perkins, 79 N. H. 11, 14, 104 Atl. 254).

Assuming therefore, as the defendant does in his brief, that the plaintiff correctly states the law in his request for instructions, the question presented by the case, which may be considered one of law because here cognizable, is merely one of fact whether there was evidence upon which it could be found that the trainmen knew the plaintiff's danger in time to have prevented the injury. Upon this question the only evidence to be considered is the situation and acts of the parties present at the time. Evidence of prior negligence of either is immaterial. "The law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct." Nashua Iron & Steel Co. v. Railroad, 62 N. H. 159, 164. So much of the discussion for the plaintiff in brief and argument as relates to the conduct of the parties prior to the time when the collision became imminent is therefore inapplicable. It is not claimed that after the plaintiff's car was on the crossing, or after the time when the plaintiff was endeavoring to stop it by the application of the brakes, the trainmen could have prevented the collision. The case therefore presented nothing for the jury upon the issue now under consideration, unless there was evidence from which it could be found that the trainmen, knowing the plaintiff was approaching the crossing, knew or ought to have known in season to have prevented the collision that he was approaching it in ignorance of the danger. If there was evidence upon which this finding could be made, the case was for the jury. If there was no such evidence, there was nothing for the jury,

The plaintiff was driving a Ford car on the highway toward a dangerous grade crossing of which he knew and which was the subject of conversation between himself and his companion as they approached it. He did not see the train until close to the crossing, when he applied the brakes; but his car did not stop and went onto the crossing. The defendant's train was made up with a freight car in advance of the engine upon which stood a trainman on the watch. This trainman saw the top of the approaching automobile when the front end of the train was about 160 feet from the crossing. The trainman could not then see the occupants of the car, but there was nothing about its operation to lead him to think the plaintiff was not intended to stop before reaching the crossing until the plaintiff came within about 15 feet of the crossing, when, realizing the plaintiff was going onto the crossing, the trainman gave the stop signal to the engineer. At practically the same moment the engineer in the engine cab saw the car and applied the brakes, but the train did not stop until its full length had...