Madden v. Boston & Me. R. R.

• Decision Date: 02 April 1912
• Citation: 76 N.H. 379,83 A. 129
• Parties: MADDEN v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

83 A. 129

76 N.H. 379

MADDEN

v. BOSTON & MAINE R. R.

Supreme Court of New Hampshire. Cheshire.

April 2, 1912.

Transferred from Superior Court, Cheshire County; Plummer, Judge.

Action by Charles A. Madden, as administrator, etc., against the Boston & Maine Railroad for negligently causing the death of plaintiff's intestate, a girl about six years old. Case transferred from superior court on plaintiff's exceptions to a verdict ordered for defendant. Overruled.

At the time of the negligence alleged, the defendants' section crew were burning the grass on a bank within the right of way, at a place in Winchester opposite the premises where the intestate lived with her parents, which were separated from the railroad way by a stone wall. The evidence was conflicting whether the fire spread to the premises where she lived, but, if it did, it was only for a few feet close to the wall; and there was no evidence whether such burning took place before or after she got on fire. When the child was first seen after catching fire, she was on the railroad's right of way, running from the fire, and her screams attracted the notice of the trackmen, who were working on the track. There was evidence that she was then from 15 to 20 feet from the men. There was no other evidence of the place at which, or the manner in which, she caught fire. The court ruled that there was no evidence from which the jury could find that she was not a trespasser at the time she caught fire, and the plaintiff excepted.

The child had several sisters, who were all young. There was evidence that on a few occasions the trackmen had seen them sitting on the wall, and that once, several months before, they were seen playing on the track. There was no evidence that the child had been seen by any one from the time she left the house, shortly before the accident, to the time when her screams were first heard by the trackmen. Two of the crew were watching the fire where it was set. By reason of the railroad curve and the cut, they were not in sight of the place where the child was first seen by the trackmen. The plaintiff offered evidence of a statement, made by the deceased to her father about an hour after the accident, as to how it occurred. The evidence was excluded, and the plaintiff excepted. The court ordered a verdict for the defendants, subject to the plaintiff's exception.

Joseph Madden, of Keene, for plaintiff.

John E. Allen, of Keene, for defendant.

WALKER, J. One of the facts it was essential for the plaintiff to prove or establish by a preponderance of evidence was that the defendant was guilty of a breach of some duty it owed to the intestate, which naturally resulted in her injury. But its duty to her, if she was a trespasser when her injury occurred, would not be the same it would if she was not a trespasser.

It was a matter in dispute at the trial whether she was on the defendant's land when she caught fire, or on her father's premises. According to the testimony, no one saw her when her clothing caught fire; and she was first seen on the defendant's land enveloped in flames. How she caught fire was not disclosed by the evidence; nor did it appear where she was at that particular time. As ruled by the court, there was no evidence that the deceased was not a trespasser when she caught fire. She was first discovered on the defendant's right of way after her clothing was on fire. How long she had been there is not disclosed...