Manseau v. Boston & M. R. R.
| Decision Date | 01 November 1949 |
| Parties | MANSEAU v. BOSTON & M. R. R. |
| Court | New Hampshire Supreme Court |
Dodge & Moulton, Littleton (Francis G. Moulton, Littleton, orally), for the plaintiff.
Hinkley & Hinkley, Lancaster (Walter D. Hinkley, Lancaster, orally), for the defendant.
The basic claims of the defendant are that there was no evidence to submit to the jury, first, that the train struck the wagon; second, that the speed of the train was improper or that it or any other negligence of the railroad was causal; and finally, that the plaintiff's contributory negligence was established as a matter of law.
The first two contentions require no extended consideration. The position of Tibbett's body, of the wagon spokes and meal, the absence of any hoof prints or marks between the crossing and the decedent's body together with other findable circumstances warranted, if they did not compel, the jury's conclusion that the engine hit the buckboard. So, too, the ignorance of the train crew of the presence of the large white horse or driver and of the accident itself justified the jury's finding a proper lookout was not kept.
The jury could find on the evidence that the buckboard was nearly across the track when struck. Upon that assumption a calculation will show that when the horse's head was only 12 feet from the nearest rail the driver and the rear end of the buckboard would be respectively about 21 and 24 feet away. At that time the train would be some 280 feet distant. There was evidence that the brakes and sand could be applied almost instantly and that this would begin reducing the speed of the train 'immediately'. It was for the jury to say whether due care on the part of the train crew would have revealed the danger of a collision and whether a prompt application of brakes and sand would have retarded the train the fraction of a second necessary for the wagon to clear. Peppin v. Boston & M. R. R., 88 N.H. 145, 149, 185 A. 153; Stocker v. Boston & M. R. R., 83 N.H. 401, 404, 143 A. 68; see also Shimkus v. Caesar, 95 N.H. 286, 288, 62 A.2d 728. It may therefore be found that failure to keep a proper lookout was both negligent and causal and the defendant's exception to the submission of this issue fails.
As to the issue of speed, it must be said that the question whether a rate of 30 miles per hour over the crossing was reasonable or otherwise was not submitted to the jury in the abstract. They were asked to determine whether this speed was reasonable under the circumstances as they existed, 'at that time' (i. e. the time of the accident) 'that night'. In addition to the blindness of the crossing another circumstance which the jury was entitled to find as previously stated was that the railroad did not keep a proper lookout. The night was clear and the headlight was on bright. These and other facts would plainly warrant such a conclusion. Whether it was negligent to run at 30 miles per hour over this crossing with no one on the train watching for travellers who might be using the crossing was a jury question. In Ware v. Boston & M. R. R., 92 N.H. 373, 375, 31 A.2d 58, 60, although the facts were dissimilar the following language seems pertinent: 'Even though the train usually traveled over the crossing at that speed, and that it might readily be said such speed was reasonable and not excessive under ordinary circumstances, conditions prevailing at the time of the accident were out of the ordinary.' In the case before us the extraordinary conditions which the jury could find were that Tibbett's view was limited and that the defendant kept no lookout such as its own rules and custom or due care required.
The undisputed fact that the horse was unscathed and evidence that the impact was on the right rear wheel of the buckboard warranted a finding that a slight decrease in the train's speed as it approached the crossing would have enabled the deceased to pass safely, and therefore that the speed was causal. It was not a matter on this particular issue, as the defendant argues, whether the crew could have discovered Tibbett's presence in time to have stopped or slowed up enough to have avoided the accident. It was the jury's right here to say that if the train was to run with no lookout sufficient to discover the team, under the circumstances that night, the speed should have been reduced as it neared and passed over the crossing. It is obvious that had this been done a finding that there would have been no accident is sustainable and the Court's charge on this issue was therefore correct. See Panagoulis v. Philip Morris & Co., N.H. 1949, 68 A.2d 672, and cases cited.
Whether the question of the decedent's due care should have been submitted to the jury depends on whether 'The circumstances of the accident conclusively negative the possibility that the decedent exercised any care for his own safety.' Dennis v. Boston & M. R.R., 94 N.H. 164, 165, 49 A.2d 164, 165. The burden is not on the plaintiff to show that the deceased exercised due care but on the defendant to prove that he did not. Dennis v. Boston & M. R.R., supra; Lovett v. Manchester St. Ry., 85 N.H. 345, 159 A. 132.
The jury saw the place and it was for them to say whether the deceased was negligent that night in not seeing the headlight of the freight or appreciating what it was if he did see it. No one saw what Tibbetts did after he drove away from the house. His comparative unfamiliarity with the crossing, the obstruction to his sight and hearing, the nearby State road parallel to the tracks and upon which as a matter of common knowledge automobile lights might be expected to pass and repass, all might be found to tend to confuse him and delay his awareness of the approach of the train until too late for him to take saving action. The evidence did not establish contributory negligence as a matter of law.
It could well be that the deceased did not realize in the darkness how far he could see...
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