Lamontagne v. Canadian Nat. Ry. Co.

• Decision Date: 03 April 1951
• Citation: 97 N.H. 6,79 A.2d 835
• Parties: LAMONTAGNE v. CANADIAN NAT. RY. CO.
• Court: New Hampshire Supreme Court

Page 835

79 A.2d 835

97 N.H. 6

LAMONTAGNE v. CANADIAN NAT. RY. CO.

Supreme Court of New Hampshire.

April 3, 1951.

H. Thornton Lorimer, Concord, and J. Ls. Blais, Berlin, for plaintiff.

Upton, Sanders & Upton, Concord, and Robert Rich, Berlin, for defendant.

BLANDIN, Justice.

The defendant's motions for a nonsuit and directed verdict were properly denied. Rising above the sea of figures which of necessity are an inevitable part of such cases as this the following landmarks appear. If the fireman were on the lookout as admittedly it was his duty to be it is findable that he could have seen Lettre the flagman from a distance of at least eight hundred thirty-two feet away. This is conceded even by the defendant's civil engineer. It could also be found at this moment that Lettre was at the seventh pole or eight hundred twenty-seven feet west of the crossing which places the fireman and engineer then about sixteen hundred fifty-nine feet from the scene of the accident. The fireman testified that as soon as he saw Lettre he 'instantly' shouted to the engineer 'soak it'! The engineer said upon hearing this he 'instantly' applied the brakes and that under conditions that day he could stop in eleven hundred feet from the time he heard the warning. He not only failed to stop before striking the trailer but went on two hundred forty feet beyond the crossing.

Under the circumstances it is obvious the jury could have found the defendant negligent because the fireman was not keeping the lookout which he claimed he was, See Fraser v. Berlin St. Railroad, 84 N.H. 107, 111-112, 146 A. 714, and which it was his duty to do. They could also have found that he did not seasonably warn the engineer or that the latter did not act with reasonable promptness to stop the train. If the jury allowed the fireman two to three seconds from the time he saw Lettre to react and shout to the engineer and if they also subtracted forty-six feet, being the distance from the engineer's and fireman's seats to the front of the engine, the train moving at an agreed rate of seventy-five feet per second would still be some thirteen hundred ninety feet to fourteen hundred sixty-five feet from the crossing when the engineer heard the warning. This allowance cannot be found unreasonable considering the fact that the experienced fireman was on the lookout and had to do nothing except to speak to the engineer. See Jones v. Boston & M. Railroad, 83 N.H. 73, 85, 139 A. 214. The engineer said he could stop in eleven hundred feet from the time he was warned. The jury did not have to believe this but they were entitled to take this experienced operator at his own word.

The defendant's attempt to escape this conclusion rests mainly on its claim that the plaintiff testified it was five minutes after the trailer stuck before the crash occurred. The defendant contends that since Lettre stepped to the ground and immediately ran up the track at the plaintiff's request he must have traveled around seven hundred twenty feet a minute and hence been far beyond where he and the plaintiff claimed he was when he saw the engine. The defendant says the plaintiff's story postulates a physical impossibility, citing Brown v. Mailhot, 89 N.H. 240, 196 A. 764, and the plaintiff is bound by it under the doctrine of Harlow v. Laclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973. Neither of these contentions holds water. The plaintiff is not bound to exactness in his estimate of time, O'Brien v. Public Service Company, 95 N.H. 79, 58 A.2d 507, and cases cited, and this principle seems particularly applicable at a moment of crisis when the jury could reasonably believe from their common knowledge that seconds might seem like minutes.

There was further evidence of the defendant's negligence in its failure to inform and instruct the train crew regarding conditions at the crossing including a comparatively recent increase in traffic. In October 1947 the City of Berlin commenced working the Dresser pit, using the crossing for its trucks and shortly thereafter the State further increased the traffic by also hauling gravel from the pit. During approximately two weeks just before the accident city trucks made eighty-four round trips over the crossing. From the tracks there was a clear view of the pit and the engineer admitted he had seen a bulldozer there about a week before the accident. He denied as did the fireman seeing a steam shovel although the shovel operator testified he had seen trains pass. Many children and their parents used the crossing daily in summer and at various times other persons traveled it to reach Father Lauziere's camp and recreational facilities. Without further detailing the evidence sufficeth to say that the use of the crossing was substantial and had increased during the year before the collision. Evidence of these facts was admissible, Smith v. Boston & M. Railroad, 87 N.H. 246, 254, 177 A. 729; Golej v. Varjabedian, 86 N.H. 244, 246, 166 A. 287, and the defendant is chargeable with knowledge of them. Carbone v. Boston & M. Railroad, 89 N.H. 12, 15, 192 A. 858. It cannot escape liability because its employees claim ignorance of conditions. Smith v. Boston & M. Railroad, supra. It is findable that had the defendant acted on this knowledge with ordinary care it would have so instructed the train crew that a keener lookout would have been maintained and prevented the accident. The defendant therefore takes nothing by its exception to the charge that the jury could find it causally negligent in failing to inform and instruct the train crew.

The defendant argues it has sustained its burden of proving that the plaintiff was guilty of contributory negligence as a matter of law. The basis of this claim is that the plaintiff failed to make a straight approach to the crossing so that the left rear wheels get onto low ground east of the gravel road and the trailer did not clear. The plaintiff says the difficulty was caused by the left rear wheel of the tractor dropping into a little mudhole just as it passed over the second or south rail. There was evidence that going to the pit the plaintiff approached the crossing cautiously in the fifteenth or lowest gear, 'just crawling' at about one to two miles per hour with his helper Lettre on the ground watching and giving directions. In this manner ...