Morier v. Hines

• Decision Date: 01 May 1923
• Docket Number: No. 1886.,1886.
• Citation: 122 A. 330
• Parties: MORIER v. HINES, Director General of Railroads (two cases).
• Court: New Hampshire Supreme Court

122 A. 330

MORIER

v. HINES, Director General of Railroads (two cases).

No. 1886.

Supreme Court of New Hampshire. Hillsborough.

May 1, 1923.

Exceptions from Superior Court, Hillsborough County.

Actions by Eva Morier and by Adelard Morier against Walker D. Hines, Director General of Railroads, tried together. Motions for nonsuit and for a directed verdict were denied, and defendant excepted. Exception sustained.

Case for negligence to recover for injuries received about 7 a. m., July 7, 1919, when a motorcycle, upon which the plaintiffs were riding, struck a railroad train operated by the defendant upon a highway grade crossing in Salem. The cases were tried together by jury. In the first case the jury returned a verdict for the plaintiff Eva, and for the defendant in the second. The defendant's motions for a nonsuit and for a directed verdict in each case were denied subject to exception.

The evidence tended to prove that: The two plaintiffs were traveling upon the highway leading southerly toward Salem on a motorcycle, the plaintiff Adelard driving, and the plaintiff Eva riding in the side car. At Canobie Lake station they crossed from east to west the defendant's railroad leading to the same point. At the time of this crossing the defendant's train also going to Salem was either stopped at or just leaving Canobio Lake station. Both plaintiffs saw the train, and knew its destination. For about a mile southerly the railroad and highway pursue substantially the same course; the highway then recrossing the railroad to the east. Both plaintiffs were acquainted with the road, and knew the location of the crossing upon which the collision occurred. The railroad is visible from the highway the greater part of the distance between the crossings, and for several hundred feet before the crossing was reached is in plain view from the highway. The motorcycle ran into the train on this crossing, striking at the gangway between the engine and cab, and the plaintiffs received the injuries for which suit is brought. Other facts appear in the opinion.

Lucier & Lucier, of Nashua, for plaintiffs.

Warren, Howe & Wilson, of Manchester, for defendant.

PARSONS, C. J. The cases were tried together. The jury found against Adelard the driver of the motorcycle, and in favor of Eva the passenger. They must therefore have 'found that both the defendant and Adelard were negligent, and that, despite Adelard's negligent driving of the car, the defendant's negligence was the proximate cause of Eva's injury.

The jury were properly instructed that Adelard's negligence in driving should not be imputed to Eva. In other words, Eva, herself free from fault, was not debarred from recovery because Adelard's negligent driving contributed in some degree to cause the injury. The doctrine that the negligence of the driver of a vehicle does not prevent recovery by an innocent passenger applies where the injury results from the combined effect of the driver's negligence and the negligence of another. Noyes v. Boscawen, 64 N. H. 361, 369, 10 Atl. 690, 10 Am. St. Rep. 410. In that case the defendant's negligent maintenance of the highway combined with the driver's carelessness to produce the injury. In Collins v. Hustis, 79 N. H. 446, 449, 111 Atl. 286, it was thought the speed of the train could be found unreasonable and its excessive rate part of the cause of the collision. It was held, therefore, that the plaintiff Collins could recover of the railroad, as she could also of O'Brien, for an injury caused by the joint negligence of both. See Bowley v. Duca, 80 N. H.——, 120 Atl. 74.

This rule, however, does not permit a recovery against a defendant without fault, or when the sole legal cause of the injury is the negligence of the driver. There was no specific request for instructions on the latter point, and the question argued is here only under the general exception to the motions for a verdict and nonsuit. A verdict should have been ordered against Eva if there was no evidence of defendant's fault, or if such fault could not have been found the proximate cause of the injury.

The plaintiffs allege as grounds of negligence in the defendant: (1) Excessive speed of the train; (2) failure to have automatic signals or a flagman at the crossing; (3) failure to stop the train in season to allow the motor to pass; (4) failure to give the statutory crossing signals.

The speed with which the train approached the crossing is estimated at between 30 or 40 miles per hour. The run of the train was from Manchester to Lawrence 26 miles, the running time 59 minutes with 11 stops. The train was stopped at Canobie Lake station, and scheduled to stop at Salem, less than a mile beyond the crossing, which was one mile from Canobie Lake. At the whistling post, one-fourth of a mile before reaching the crossing, it was the practice to shut off steam and drift into Salem. The train on this occasion was on time, and was proceeding at its usual speed. The crossing as it was approached on the highway was in no way concealed or obscured from the view of a highway traveler. For at least 700 feet from the crossing the track was in open view from the highway. The highway travel was light at that hour of the day. There was nothing calling for special protection for this crossing, or from which it could be concluded that operating this train in its usual manner over such a crossing in the manner disclosed in the evidence was a breach of the defendant's duty to exercise care for the benefit of travelers on the highway. The circumstances relied upon in Collins v. Hustis, 79 N. H. 446, 111 Atl. 286, and Speares Sons v. Railroad, 80 N. H. 243, 116 Atl. 343, as evidence tending to prove occasion for special protection for the crossing are not here presented.

Because of the death of the engineer his account of the event is wanting, but it must be found that at some time he sounded the whistle and applied the emergency brake, but did not do so in season to stop the train before the crossing was reached. It was not the duty of the train engineer, when he observed the motor approaching the crossing on the highway, to stop and allow the cycle to pass. Because that could easily be stopped within a short distance, while the train could be brought to a standstill only with much greater trouble and delay, it was the duty of the highway traveler to stop and allow the train to pass. Gahagan v. Railroad, 70 N. H. 441, 442, 50 Atl. 146, 55 L. R. A. 426.

"The general rule is that the engineer has the right of way as against a person approaching a crossing. In the absence of his knowledge of facts reasonably leading to the conclusion that the traveler intends to recklessly go onto the track and commit suicide, or that he is not in possession of ordinary intelligence or is not governed by the ordinary instinct of self-preservation in the face of imminent danger, the engineer is not bound to stop his train and give the traveler the right of way. He is not chargeable with negligence in not assuming that the traveler will deliberately persist in walking onto the track, for the latter is not in danger until he reaches the track; common prudence would cause him to stop at that point, if not before; and without other evidence of his intention to hazard a passage * * * than is furnished by the mere fact that he is walking toward it, the engineer is justified in assuming that he will Exercise common prudence and stop before reaching the place of danger." Waldron v. Railroad, 71 N. H. 362, 365, 52 Atl. 443, 445; Stearns v. Railroad, 75 N. H. 40, 45, 71 Atl. 21, 21 Ann. Cas. 1166.

The only evidence tending to show the engineer's knowledge of the approach of the motor to the crossing is the alarm whistle sounded by him, and the application of the emergency brake made by him. There is no evidence tending to show that he did or ought to have appreciated the danger in season to have stopped the train before the crossing was reached. In Cavanaugh v. Railroad, 76 N. H. 68, 79 Atl. 694, the engineer's testimony furnished evidence of his knowledge of the traveler's danger in season to have prevented the collision. While the highway travelers were not on foot, the machine in which they were traveling could readily be stopped in a short distance. The evidence was that at the speed with which Adelard testified he approached the crossing it could be stopped within 10 to 15 feet. Its continued approach toward the crossing was therefore no evidence that the driver did not intend to stop and allow the train to pass until it came much nearer the point of danger than the point at which the engineer could have stopped the train, so as not to pass over the crossing.

The situation which caused the engineer to act when he did is not disclosed, but there is no evidence upon which he could be found negligent for failing to give precedence to the motorcycle.

The last contention to be considered is the claim that the statutory crossing signal was not given. To go to the jury on this question, the plaintiffs were bound to offer evidence tending to show disobedience of the statute, that such disobedience was a breach of a duty due them, and that but for such disobedience the collision would not have occurred. Taylor v. Thomas, 77 N. H. 410, 413, 92 Atl. 740; Davis v. Railroad, 70 N. H. 619, 521, 49 Atl. 108. The fireman of the train called as a witness by the plaintiffs testified the signal was sounded at the whistling post required by statute to be placed 80 rods from the crossing. The conductor, baggagemaster and two trainmen testified directly to the same effect. Whatever deduction should be made from the weight to be given this testimony because of the witnesses' employment by the defendant, it is to be remembered that the defendant was not bound to prove the signals were given, but the plaintiffs had the burden of proving that they were not given. To prove this two passengers on the train were called, one of whom was...