McGinley v. Maine Cent. R. Co.

• Decision Date: 04 February 1919
• Docket Number: No. 1561.,1561.
• Citation: 106 A. 641
• Parties: McGINLEY v. MAINE CENT. R. CO.
• Court: New Hampshire Supreme Court

106 A. 641

McGINLEY

v. MAINE CENT. R. CO.

No. 1561.

Supreme Court of New Hampshire. Coos.

Feb. 4, 1919.

Exceptions from Superior Court, Coos County; Sawyer, Judge.

Case for personal injuries by Theresa McGinley against the Maine Central Railway Company. Verdict for plaintiff. Transferred on defendant's exception to the denial of its motion for a directed verdict. Exception overruled.

Case for personal injuries. Tried by jury. Verdict for the plaintiffs. Transferred from the April term, 1918, of the superior court on the defendant's exception to the denial of its motion for a directed verdict.

Bernard Jacobs, of Lancaster, for plaintiff. Drew, Shnrtleff, Morris & Oakes, of Lancaster, for defendant.

YOUNG, J. The plaintiff was struck on a level crossing by the cowcatcher on one of the defendant's engines. The evening was dark, but the headlight was lighted, and there was an electric light at or near the crossing. The engine was a Mallett compound, and was moving about three or four miles an hour. The headlight is placed nearer the ground, and further forward on such an engine than on the ordinary engine; the cowcatcher projects ten feet or more in front of the front beam, or very much farther than the cowcatcher on the ordinary engine. The noise such an engine makes when it is moving as slowly as it was on the night of the accident is similar to that made by the blower when used to get up steam on an engine which is standing still. The street along which the plaintiff was traveling crossed the railroad at an acute angle, and for the last hundred feet before reaching the crossing the plaintiff was traveling in the same direction and about as fast as the engine and in a line nearly parallel to and but a short distance from the defendant's tracks. She heard the noise the engine was making when she was a considerable distance from the crossing, and when she was within a short distance of it saw what she thought was the engine, but it was so completely enveloped in steam that she could not see that it was in motion, and concluded from the noise it was making and the fact the bell was not being rung that it was standing still, and stepped onto the crossing, and did not discover her mistake until it was too late to avoid the accident.

In other words, the evidence warrants a finding that the plaintiff looked when she was but a short distance from the crossing, and saw what she supposed was an engine standing on the track. It is true that it was so...