Morris v. Boston & M. R. R.

• Decision Date: 01 December 1931
• Citation: 160 A. 52
• Parties: MORRIS v. BOSTON & M. R. R. LARO v. SAME.
• Court: New Hampshire Supreme Court

160 A. 52

MORRIS

v. BOSTON & M. R. R.

LARO

v. SAME.

Supreme Court of New Hampshire. Merrimack.

Dec. 1, 1931.

On Rehearing March 1, 1932.

Second Motion for Rehearing Denied May 3, 1932.

Exceptions from Superior Court, Merrimack County; Matthews, Judge.

Separate actions by Joseph P. Morris and George Laro against the Boston & Maine Railroad. On trial of the two cases together, verdicts were tendered for plaintiffs, whereupon the cases were transferred on defendant's exceptions.

Judgment for defendant in first action, and judgment for plaintiff on the verdict in second action.

Actions on the case, to recover for personal injuries to the plaintiff Morris, and for damage to the automobile of the plaintiff Laro, arising out of a collision with the defendant's locomotive at a crossing just north of Penacook Station. The cases were tried together with verdicts for the plaintiffs. Transferred by Matthews, J., upon the defendant's exceptions to the admission of evidence, to the denial of its motion for directed verdicts, to the failure to instruct as requested, and to the allowance of certain arguments.

Penacook is situated on the defendant's main line between White River Junction and Concord. The station is on the west side of the main track which runs north and south. Easterly from this track are three side tracks, the "passing track" A, a loading track B, and a spur track C. These severally converge at the north, A with B, B with C, and C with the main; the last-named point of convergence being 450 feet north of the crossing. All measurements north and south herein given are from the center of the crossing. The distance on that center line between the westerly rails of main and C tracks is 47 feet, and between the easterly rails of B and main is 26 feet 4 1/2 inches. On the west of the main track there is a side track leading northerly past the freight house. Its junction with the main track is approximately midway between the crossing and the station.

The crossing is a private crossing maintained by the defendant. It accommodates travel to and from the defendant's double tenement house situated northeasterly of the crossing, and like travel by the defendant's patrons who have occasion to receive or deliver freight in carload lots from and upon cars set in upon its loading track to the south, or to load and unload lumber and other heavy merchandise at its timber loading wharf to the north. It also affords access to several privately owned buildings situated easterly of the track, including some storehouses and "Rolfe's sheds," so-called.

The view of a traveler crossing from the east is so obstructed by the defendant's buildings and other objects as to limit the distance he could see a train approaching from the north at track C to 456 feet; at a point midway between C and B to 700 feet; at the east rail of B to 1,267 feet; at the east rail of A to 1,609 feet.

The train was a five-car passenger train, drawn by two locomotives of the Pacific type. Its operation was in the practical control of the engineer of the leading engine. It was proceeding south on the main track, was due at Penacook station at 1 o'clock, and was two minutes late.

The plaintiffs are brothers-in-law. Laro was employed at Rolfe's sheds, and was to report for work at 1 o'clock. Morris accompanied him to his work with the understanding that he was to have the use of Laro's car for an afternoon trip, and would come for him at 5 o'clock. Taking possession of the car at the "sheds," Morris proceeded westerly across the defendant's tracks.

Morris, who will hereinafter be referred to as the plaintiff, testified that he looked north and south when he entered the car at a point between 40 and 45 feet southeasterly of the track C crossing; that at that point he could see north only to the freight house, which is 128 feet north of the crossing; that, when he was passing track C, he again looked north, and could see to the end of the trestle bridge which is 672 or 674 feet northerly from the crossing; that, when between tracks C and B, he looked south; that while so looking he saw the acting station agent at or near the steps at the entrance of the station-somewhat over 78 feet south of the crossing —waving to him and moving toward the crossing: that he understood from the agent's motions that he was beckoning him to come across and stop, and that he desired to speak to him; that the agent continued to advance toward the crossing as though he wanted to speak to him; that he accordingly continued across track B and the main track and came to a stop, supposing the car was in clearance; that he asked the agent "what he wanted," to which the latter replied, "Look out for the train"; that he looked north and saw the train at about the southerly corner of the freight house; that he then looked to make sure the car was in clearance of the train, and, being in doubt whether it was, and finding that his motor had stopped, he stepped on the starter and "was hit almost instantly"; that on his earlier observations he saw no train approaching in either direction; that he did not look north after the observation made while crossing track C; that there were no cars upon the side tracks which obstructed his view in either direction; that in making the crossings his car was in low gear, and from track C to the point where it was struck—a distance of about 45 feet—it was proceeding at a speed of about 5 miles per hour, and could have been stopped at any time in a distance of about 2 feet. It is assumed by both parties that the line of the plaintiff's travel was along the middle of the crossing.

The duties of the station agent were being performed by the telegraph operator referred to herein as the agent. He testified that, as he came out of the station, he saw the train approaching at a point a little south of the bridge; that when he had reached the concrete platform by way of the steps, which are approximately 150 feet south of the crossing, he saw the automobile between tracks C and B approaching at an apparent speed of 5 or 6 miles per hour; that he held up his left hand, palm toward the plaintiff, as a signal for him to stop; that, while giving the signal, he was walking south toward the place where he was to load express; that he continued the signal while proceeding four or five steps, and until he thought from the driver's conduct he understood the signal: that the driver "looked immediately toward the train and then seemed to look down to the floor of the car and the ear slowed down slower than he was going at first"; that the front wheels of the car were then on track B: that he continued southerly watching the crossing; that, when he had reached a point opposite the baggage room door, or a distance which he estimated as between 20 and 30 feet, he turned to face the north and saw the accident; that he thought he watched the automobile all the time up to the collision, and did not see it come to a stop. He denied moving toward the crossing or having any talk with the plaintiff.

The engineer of the leading locomotive testified that he was sitting on his seat looking out the side window; that he did not see the car approaching the crossing, and had no warning or knowledge of its presence until he saw it "go in the air" at the moment of collision; that he observed the agent on the station platform putting up first one finger and then the hand, which motions he interpreted as "trying to call somebody's attention to something across" the tracks. The fireman on the leading engine testified that from a point north of the bridge he was sitting on his seat keeping a lookout; that, when the locomotive was "forty or fifty feet" from the crossing, he saw the car come on to the passing track; that it happened "pretty quick," and he did not have time to communicate with the engineer.

It was conceded that one long blast of the whistle was given 1,327 feet from the crossing in accordance with a rule of the defendant applicable to private crossings; that the automatic bell was ringing from a point 1,600 feet away; that no other warnings were given prior to the collision. Other facts appear in the opinion.

Robert W. Upton, Joseph C. Donovan, and Lawrence I. Duncan, all of Concord, for plaintiffs.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendant.

SNOW, J.

Accepting the plaintiff's statement of the facts as true, it is clear that the collision would not have occurred if he had not stopped his car in the way of the on-coming train. If he is bound by his testimony, and if it conclusively appears therefrom that he was negligent in the placement of the car in the way of the train, the negligence of the defendant's servants prior to his act in bringing the car to a stop is immaterial.

One of the vital facts in issue between the parties at the trial was whether the automobile was in motion or at rest when struck by the locomotive. The plaintiff testified that the ear came to a stop west of the rail but before the car was in clearance of the path of the locomotive, and that it remained there during his inquiry of the agent, and the answer, and while he looked toward the train. All of the other eyewitnesses to the collision, four in number, testified that the locomotive hit the car while it was moving across the track. Whether or not the car came to a stop was a fact peculiarly within the plaintiff's knowledge. His statement that it stopped was clear and unequivocal. His testimony was either true or deliberately false. In either event, he is bound by it in so far as it affects the determination of his rights. Harlow v. Leclair, 82 N. H. 506, 512, 136 A. 128, 50 A. L R. 973, 980; Fraser v. Railway, 84 N. H. 107. 111, 146 A. 714; Saidel V. Society, 84 N. H. 232, 233, 149 A. 78.

It may be conceded that the conduct of the defendant's agent was a circumstance bearing on the plaintiff's care in approaching the main track without looking...