Jones v. Boston & M. R. R.

• Decision Date: 07 June 1927
• Citation: 139 A. 214
• Parties: JONES v. BOSTON & M. R. R. (two cases).
• Court: New Hampshire Supreme Court

139 A. 214

JONES

v. BOSTON & M. R. R. (two cases).^*

Supreme Court of New Hampshire. Hillsborough.

June 7, 1927.

Transferred from Superior Court, Hillsborough County; Sawyer, Judge.

Actions on the case by Elgin A. Jones, administrator of the estates of Harry W. Cheever and Mary I. Cheever, against the Boston & Maine Railroad. Transferred to the Supreme Court after a disagreement on defendant's exceptions to denial of its motions for nonsuits and directed verdicts. Exceptions overruled.

The deceased parties were killed by a collision between a motor truck in which they were riding and one of the defendant's trains. The truck was owned by the deceased, Harry W. Cheever, and was operated by one Moore, an employee of his, who was also killed. The accident happened July 16, 1923, at a few minutes after 7 o'clock in the morning, upon a grade crossing, in the town of Milford, known as Richardson's Crossing. This crossing was not protected by flagman or automatic signals. The railroad here crosses the highway at an acute angle so that both the train and the truck were traveling in an easterly direction. The weather was rainy and somewhat foggy. It was not denied by the plaintiff that the statutory signals by whistle and bell were sounded. There was, also, evidence that, commencing at about 660 feet from the crossing, another long blast or station whistle was blown. The truck drove onto the crossing slowly, at a speed of 8 or 10 miles per hour. At this speed, it could have stopped in 20 feet. The highest estimate of the speed of the train given by any witness was 50 miles per hour. At 40 miles per hour, it would require 700 feet to stop the train. The jury had a view. Other facts appear in the opinion.

Kittredge & Prescott, of Milford, Doyle & Doyle, of Nashua, Phillip H. Faulkner, of Keene, and Paul J. Doyle, of Manchester, for plaintiff.

Warren, Howe & Wilson, of Manchester, Demond, Woodworth, Sulloway & Rogers, of Concord, and De Witt C. Howe, of Manchester, for defendant.

BRANCH, J. The plaintiff's claims of negligence may be summarized as follows: (1) Failure to provide an automatic signal at the crossing; (2) excessive speed of the train; (3) the conduct of the engineer, (a) in failing to give a warning signal after he saw the truck, (b) in failing to use sand when the emergency brake was applied.

In plaintiff's brief a further suggestion is made that it might be found that the brakes were not applied at all until after the collision took place. The only evidence referred to as tending to sustain this claim is that of a passenger in one of the cars, who testified that he was leaning on his arms on the seat in front; that the first notice he had of the accident was a "thump" which threw him against the back of the seat; and that before this, he had not "felt any shock from the brakes at all." Upon cross-examination, he testified that he was not paying attention to the running of the train; that at no time before the train stopped did he feel any application of the brakes; and that he did not know how they stopped the train. In view of the direct testimony of the defendant's witnesses that the brakes were given an emergency application, it is doubtful whether the "thump" referred to by the witness was caused by the collision or by the brakes, but if it be assumed that what he felt was the jar of the collision, his testimony, clearly explainable on the ground of inattention, "amounts to no more than a scintilla which reasonable men could not consider sufficient to counterbalance the direct evidence of the fact." Collins v. Hustis, 79 N. H. 446, 447, 111 A. 286, 287; Morier v. Hines, 81 N. H. 48, 53, 122 A. 330; Kingsbury v. Railroad, 79 N. H. 203, 204, 106 A. 642; Gage v. Railroad, 77 N. H. 295, 90 A. 855, L. R. A. 1915A, 363.

In answer to the plaintiff's first two claims of negligence, the defendant argues that the only duty of the railroad was to make its crossing safe for use by travelers who exercised due care for their own safety, and that, under the circumstances disclosed by the evidence, it could not be found that "the crossing as it was and the train as it was managed" constituted "an unreasonable danger to a careful highway traveler." A thorough examination of the record leads to the conclusion that, when tested by the standard thus set up, there was sufficient evidence of defendant's fault to go to the jury.

In determining whether a traveler, in the exercise of ordinary care, might fail to discover the approach of a train, it is obvious that the question whether the view of the track from the highway is open or obstructed is of prime importance. It has so been treated in many cases. Phillips v. Railroad, 81 N. H. 483, 128 A. 809; Hurlich v. Railroad, 81 N. H. 286, 125 A. 150; Romani v. Railroad, 81 N. H. 206, 123 A. 233; Morier v. Hines, 81 N. H. 48, 122 A. 330; Speares Sons Co. v. Railroad, 80 N. H. 243, 116 A. 343; Quimby v. Railroad, 79 N. H. 529, 111 A. 302; McGinley v. Railroad, 79 N. H. 159, 106 A. 641; Fuller v. Railroad, 78 N. H. 366, 100 A. 546; Wiggin v. Railroad, 75 N. H. 600, 75 A. 103; Stone v. Railroad, 72 N. H. 206, 55 A. 359.

Where the physical surroundings are such that a traveler might be unable, by the use of ordinary care, to discover the approach of trains, the question of the adequacy of the protection furnished by the railroad becomes one of fact for the jury. Hurlich v. Railroad; Romani v. Railroad; Speares Sons Co. v. Railroad, supra.

In the present case, the view of the track from the highway available to a traveler approaching from the west is greatly obstructed by a set of farm buildings and a station building located between the railroad and the highway. The farm buildings consist of a house, garage, barn, shed, and henhouse, extending from a point 600 feet from the crossing on the highway to the 350-foot point. The station building begins opposite the 180-foot point and extends to the 120-foot point, and at the latter point the view of the track by the west end of the station is completely cut off by the combined effect of the station building and the shed above mentioned. As the station building is passed, a view of the track looking by the east end of the station begins to develop, and becomes gradually more extensive so that at 70 feet from the crossing a traveler could see 265 feet of track; at 60 feet, 327 feet of track; at 50 feet, 425 feet of track; at 40 feet, 800 feet of track; at 35 feet, 1,500 feet of track; at 30 feet, 2,000 feet of track. Both parties agree that the first useful view of the track in this direction could be obtained at the 60-foot point. In order to obtain these views, it would be necessary for a highway traveler to turn his head increasingly to the left and look more and more behind him, on account of the acute angle at which the road and the track intersect, and he would therefore be unable to observe both the railroad and the highway at the same time. This fact might properly be regarded by the jury as a most important element in the situation. Fuller v. Railroad, 78 N. H. 366, 100 A. 546. In short, the danger of crossing the railroad at this point was increased, first, because the possibility of obtaining antecedent views of an approaching train was greatly reduced by the presence of the buildings above mentioned; and, second, because it was impossible for a driver to keep both the track and the road in sight at the same time, after reaching the point where a useful view of the railroad by the east end of the station became available. If, for the convenience of the public, the defendant deemed it necessary to run trains over a crossing where the view was thus obstructed, at a speed of 40 to 50 miles per hour, it was for the jury to say whether ordinary prudence would not require more effective warning of the approach of trains than was furnished by the whistle and bell of the locomotive. Collins v. Hustis, 70 N. H. 446, 449, 111 A. 286; Hicks v. Railroad, 164 Mass. 424, 41 N. E. 721, 49 Am. St. Rep. 471.

Since Mary I. Cheever was a passenger in the truck, the negligence of the driver, if any, could not be imputed to her, and since there was no evidence of fault on her part, it follows that defendant's exceptions in the second case must be overruled. Williams v. Railroad, 82 N. H. 253, 254, 132 A. 682. Plaintiff's counsel have treated the first case as though it stood upon the same ground, but the evidence does not justify this assumption. Moore, the driver of the truck, was the servant of the deceased, Harry W. Cheever, and if his conduct was such as to bar a recovery in his own behalf, there can be no recovery by the estate of his employer.

The principle of respondeat superior, although usually invoked in cases where the master is a defendant, applies with equal force to those in which he is a plaintiff. This was the situation in Jones v. Railroad, 78 N. H. 551, 102 A. 882, and the principle was there applied without objection. The citation of authorities for such an obvious conclusion seems superfluous, but reference may be had to Berry, Automobiles (5th Ed.) § 573, where the above rule is stated. The contention of the defendant that the evidence conclusively demonstrated the negligence of the truck driver must therefore be considered.

The question of due care on the part of decedents, in cases of fatal accidents upon grade crossings and at similar places, has received frequent and exhaustive consideration by this court in no less than 22 reported cases. State v. Railroad, 52 N. H. 528; Huntress v. Railroad, 66 N. H. 185, 34 A. 154, 49 Am. St. Rep. 600; Evans v. Railroad, 66 N. H. 194, 21 A. 105; Lyman v. Railroad, 66 N. H. 200, 20 A. 976, 11 L. R. A. 364; Davis v. Railroad, 68 N. H. 247, 44 A. 388; Folsom v. Railroad, 68 N. H. 454, 38 A. 209; Smith v. Railroad, 70 N. H. 53, 47 A. 290, 85 Am. St. Rep. 596; Stone v. Railroad, 72 N. H. 206, 55 A. 359; Tucker v. Railroad, 73 N. H. 132, 59 A. 943; Minot v. Railroad, 73 N....