Kingsbury v. Boston & M. R. R.

• Decision Date: 01 April 1919
• Parties: KINGSBURY v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

106 A. 642

KINGSBURY

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Sullivan.

April 1, 1919.

having failed to ring its warning bell before passage of south-bound train immediately after passage of north-bound train when bell rang held erroneous for lack of proper evidence, though facts tended so strongly to show the bell had rung that plaintiff's counsel contended the jury could not have based its verdict on finding to the contrary.

Transferred from Superior Court, Sullivan County; Branch, Judge.

Action by Fayette B. Kingsbury against the Boston & Maine Railroad, resulting in verdict for plaintiff. Defendant excepted. Transferred from the Superior Court. Exceptions sustained, and verdict set aside.

Case for negligence resulting in personal injury to the plaintiff. Verdict for the plaintiff. Transferred from May term, 1918, of the superior court. The declaration contained several counts, one of which alleged that the defendant was negligent in its maintenance of an electric bell system at the highway crossing, where the plaintiff was injured while attempting to pass over the crossing in an automobile, which collided with a south-bound train. Upon approaching the crossing plaintiff heard the bell ring when a north-bound train passed the crossing, and thereupon stopped the automobile. When as he testified the bell stopped ringing he drove toward the crossing, when the southbound train came along and collided with his automobile, causing the injury complained of. He also claimed that the bell did not ring for the south-bound train. The court submitted the questions whether the bell rang, and, if it did not, whether its failure was due to the negligence of the railroad; and the defendant excepted.

Hurd & Kinney, of Claremont (W. E. Kinney, of Claremont, orally), for plaintiff.

Streeter, Demond, Woodworth & Sulloway, of Concord (Jonathan riper, of Concord, orally), for defendant.

WALKER, J. The burden was upon the plaintiff under the second count to show by a preponderance of the evidence that the warning bell did not ring when the southbound train passed the crossing, and that its failure to ring was due to the negligence of the defendant. If it is assumed, in accordance with the testimony of the plaintiff and his brother, that it did not ring, there is no evidence that its failure in this respect was due to the defendant's negligence. It appears from the plaintiff's testimony that it did ring a short time before upon the approach of the north-bound train. At that time the system was in perfect working order, and the defendant was not notified that it was defective in any respect. Nor does it appear that it had failed to properly inspect the apparatus, or that in the exercise of ordinary care it could have done anything more than it did do to ensure the ringing of the bell when trains were approaching. Moreover, it seems to be conceded that the bell rang immediately after the accident, when the south-bound train...