Locke v. Payne

• Citation: 124 A. 668
• Decision Date: 01 April 1924
• Docket Number: No. 1935.,1935.
• Parties: LOCKE v. PAYNE, Director General.
• Court: Supreme Court of New Hampshire

124 A. 668

LOCKE

v. PAYNE, Director General.

No. 1935.

Supreme Court of New Hampshire. Rockingham.

April 1, 1924.

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

Action by Stella Locke, administratrix of Joseph W. Locke, deceased, against John Barton Payne, Director General. Case transferred on plaintiff's exceptions. Exceptions overruled.

Case to recover damages for negligently causing the death of Joseph W. Locke upon a grade crossing at Newton Junction. Trial by jury, and verdict for the defendant.

The evidence tended to prove that at Newton Junction a large number of persons are accustomed to take a morning train, and that while waiting for its arrival they occupy the highway adjacent to the railroad station and close to the grade crossing. Locke was a vendor of newspapers, and habitually mingled with these prospective passengers in the pursuit of his vocation. There was no crossing gates, and warnings of the approach of trains were given by a flagman, who was provided with a portable stop signal.

Upon the morning of the accident one Merrick was approaching the crossing driving a horse attached to a wagon. Rowell, the crossing tender, came out and displayed his signal in front of Merrick's horse when the latter was about a team's length from the crossing. The horse was frightened, bolted, and threw Locke onto the track, where he was killed by the approaching train. There was evidence that the statutory crossing whistle was not given, and that the trouble was caused by the breaking of a girth, letting the wagon onto the horse's heels. Merrick crossed safely in front of the train.

The case was submitted to the jury under instructions that they should find for the plaintiff if Rowell was negligent in frightening the horse, or in being slow in getting out to give warning. The plaintiff also claimed the right to recover for the failure to maintain crossing gates, or to give the statutory warning, and excepted to a refusal to submit these issues to the jury.

William H. Sleeper, of Exeter, for plaintiff.

Hughes & Doe and Robert Doe, all of Dover, for defendant.

PEASLEE, J. It appears that Locke used the defendant's premises and the adjacent highway, where passengers waiting for trains were accustomed to congregate, as a place in which to carry on his business of selling papers. He was not a customer of the railroad, nor was he a highway traveler intending to cross the railroad tracks. The utmost than can be said in the plaintiffs favor is that he wag at this place to the knowledge of the defendant. Apparently the defendant did not object to the use he made of the premises, and the questions presented relate to the duty owed to him under such circumstances. In conduct subsequent to his entry the defendant was bound to use ordinary care "when it saw fit to act at all." Knowles v. Company, 77 N. H. 268, 269, 90 Atl. 970. Upon this issue the case went to the jury, and the defendant has a verdict.

But the plaintiff claims that the crossing should have been guarded by gates instead of by a flagman, and that this fault is one of which she can complain in this suit. The position cannot be sustained, even if it be assumed that Locke occupied the position of a licensee. As to such a party the defendant is not bound to maintain its premises in a safe condition. The only duty is to give reasonable information as to existing conditions that are not open to observation, and to otherwise refrain from negligent conduct. Beyond this there is no...