Mitchell v. Boston & M. R. R.

• Decision Date: 27 July 1894
• Parties: MITCHELL v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

34 A. 674

68 N.H. 96

MITCHELL

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Grafton.

July 27, 1894.

Case reserved from Grafton county.

Action by David Mitchell against the Boston & Maine Railroad for personal injuries caused by defendants' negligence, in which there was a verdict for plaintiff. Case reserved, on exceptions by defendants, for the consideration of this court. Judgment on the verdict.

The accident occurred in the defendants' railroad yard in the village of Woodsville. The plaintiff's evidence tended to show that there was on the 21st day of May, 1888, and for a long time had been, a footpath across the yard, which, with the defendants' knowledge, their servants and people generally were accustomed to use as they had occasion; that on that day the defendants' cattle train stood in the yard, across the path, at the place where on Mondays it usually stood, and where hogs, sheep, and calves were sometimes loaded thereon and unloaded; that the plaintiff, following the path, and crossing two of the tracks, went to the train, and got upon a car, to see some cattle for which he was negotiating; that the track he last crossed was about six feet from the car, and upon it, six or eight rods from the plaintiff, stood a locomotive engine called the "Profile"; that, as the cattle train was about starting, the plaintiff got down from the car, stepped back so far that one foot was inside the rail of the adjacent track, and, while there standing, and just as Moulton, a cattle dealer, was getting on the moving train, was struck and injured by the Profile; that the bell of the Profile was not rung, or other warning given of its approach; that it was the custom to ring the bell, and the defendants' rules required it to be rung, before starting the engine that the plaintiff had worked in the yard, knew the custom, and relied on the signal's being given. It appeared from evidence adduced by the defendants that the fireman of the Profile was not on the engine at the time of the accident, but was engaged in moving a switch; that the engineer was sitting in his proper place, where he could not see the plaintiff; and that he did not see the plaintiff until after the accident He testified that he had been at work for the corporation 26 years; had run a locomotive20years; was familiar with the business done in the yard at that time of day; was not familiar with the crossing (the pathway), but had noticed people dodging across the track there; when there was a train they dodged around, and, when not, they walked as people generally do. The defendants objected to evidence of the existence and use of the footpath, and to evidence that their servants were present and knew of the loading and unloading of stock in the yard at the place above mentioned, and at the close of the testimony they moved for a verdict. The court overruled the objections and denied the motion, and the defendants excepted. The defendants called six witnesses, who were apparently within hearing of the bell at the time the Profile started, only two of whom testified that the bell was rung. In the closing argument the plaintiffs counsel commented on the fact that the defendants did not call as witnesses the fireman of the Profile, the conductor of the cattle train, or Moulton, and argued that if they had been called, they would have testified that the bell was not rung. He also argued that out of the whole population of Woodsville, the defendants were able to produce but two witnesses who could testify that the bell was rung, and asked the jury to draw an inference from the absence of others, to which the defendants excepted. The defendants requested the following instructions: "(1) If the jury find that the plaintiff was a trespasser, in going upon the defendants' tracks, or was there as a mere licensee, without the defendants' invitation, he cannot recover, unless they find that the injury was wantonly inflicted, or that the engineer might have prevented the injury, by the exercise of reasonable care, after discovering that the plaintiff was in danger. (2) If the jury find that the defendants passively permitted people to pass and repass at the place where the plaintiff was injured, that that is not holding out an invitation to him or the public to come upon the tracks; and the plaintiff stands, even then, no better than a trespasser. (3) If the plaintiff was a trespasser upon the defendants' tracks, they owed him no duty, except the negative one not wantonly or willfully to do him an injury. (4) If the defendants' engineer on the engine was in the exercise of ordinary care in the discharge of his duty, and the plaintiff was a trespasser on the defendants' grounds, the plaintiff cannot recover." The court, after defining "ordinary care" and "negligence," and illustrating their meaning, instructed the jury, among other things, in substance, as follows: "The defendants' servants, in moving the locomotive, were bound to exercise ordinary care to prevent injury to those who they knew, or, by ordinary care, would have known, were in their way. They had a right to move it over the track, but in doing so they were bound to exercise ordinary care to prevent injury to others who were in its way, whether they were there rightfully or wrongfully. If they knew, or ought to have known, that the plaintiff was in a place where he was likely to be injured by the locomotive, in passing along the track, it was their duty to exercise ordinary care to prevent such injury, whether he had a right to be there, or was a mere trespasser. If they did not know of the plaintiff's presence, and, by the exercise of ordinary care, could not have learned it they would be justified in acting on the supposition that he was not there. The evidence relating to the footpath across the yard, the travel over it, and the character of the travel, —that is, whether permissive or wrongful,— is to be considered, in determining whether the defendants' servants knew, or reasonably ought to have known, of the plaintiff's presence, and to be weighed on the question whether they exercised ordinary care. The plaintiff was bound to exercise ordinary care to protect himself from injury. He was bound to use his faculties, and take notice of all circumstances affecting his safety which were within his knowledge, or which, by ordinary care, he could have learned, and to use all the means to protect himself from injury that persons of average prudence would use under like circumstances. If he failed to do this, he was negligent. It was the duty of both parties to exercise ordinary care, equally and reciprocally. Neither was exonerated from his obligation by the negligence or misconduct of the other. If the defendants, by their servants, exercised ordinary care,—such care as persons of average prudence would have exercised under the same circumstances,—they performed their duty, and your verdict will be in their favor, and it will be unnecessary for you to consider the case further. If you find that the defendants did not exercise ordinary care, you must consider the conduct of the...