Morrison v. Boston & M. R. R.

• Decision Date: 07 February 1933
• Citation: 164 A. 553
• Court: New Hampshire Supreme Court
• Parties: MORRISON v. BOSTON & M. R. R.

164 A. 553

MORRISON

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Coos.

Feb. 7, 1933.

Transferred from Superior Court, Coos County; Page, Judge.

Action by Cleota H. Morrison, administratrix, against the Boston & Maine Railroad. Verdict for plaintiff, and the case is transferred on defendant's exceptions.

New trial awarded.

Case, for negligently causing the death of the plaintiff's intestate at a grade crossing in Carroll. Trial by jury and verdict for the plaintiff. Transferred by Page, J., on the defendant's exceptions relating to evidence, argument, and the charge and to the denial of its motion for a directed verdict The opinion states the material facts.

Coulombe & Coulombe and Ira W. Thayer, all of Berlin (Ovide J. Coulombe, of Berlin, orally), for plaintiff.

Irving A. Hinkley, of Lancaster, for defendant.

ALLEN, J.

I. Regarding the motion for a directed verdict, the following facts may be stated: The decedent was driving a motortruck over a highway running northeasterly, and was struck on a main track crossing by the defendant's train traveling westerly. A side track some 8 feet southerly of the main track extended over the crossing, and some freight cars were standing on it. From the crossing to the nearer end of the nearest car was not less than 70, and not over 105, feet. These cars and a bush on premises south of the railroad obscured the view of the on-coming train for one traveling in the direction of the decedent But for a distance of over 100 feet from the main track crossing the view of the tracks from the crossing to the freight cars was clear.

According to the evidence for the plaintiff, the truck was driven upon the side track slightly to the right of the center of the crossing, swerved to the left as soon as the forward wheels had crossed the rails of that track, and was struck on the side at the cab and about midway of the westerly half of the main line crossing.

The defendant's negligence might be found. If the proper warning signals of the train by whistle and bell were given, yet its excessive speed might be inferred. The evidence of a speed of 40 to 45 miles an hour supported more than a conjectural inference of the speed. The witness who testified to it was seated at a place where he had a clear view of the train for the space between the freight cars and the crossing. The speed was admittedly greater than that of most trains in coming to the crossing, stopping as they did at the station some 10 or 12 rods easterly of the crossing, while this one did not. The witness observed this difference, and, conceding it to be very difficult to estimate the speed correctly, yet regarded his estimate as good as the average man's. Especially with account taken of the obstructions to a view of the train from the highway and of the customary stopping of trains at the station, the sufficiency of the evidence of an improper speed is clear.

As to the decedent's blame, his speed as he approached and drove upon the crossing is in dispute. The defendant relies upon the statute (P. L. c. 249, §22), making it a misdemeanor to drive at a speed of over 10 miles an hour when approaching and within 100 feet of a railroad crossing of which specially prescribed warning notices have been given, and asserts that the evidence demonstrates the violation of the statute. The assertion overlooks the trier's duty to reject uncontradicted evidence if it is not believed and does not require acceptance. Andrew v. Goodale, 85 N. H. 510, 101 A. 36. Considering the jury's authority to discount and discredit testimony, a speed forbidden by the statute was not definitely proved.

The burden of proving such a speed rested upon the defendant. While the statute (P. L. c. 328, § 13) states in terms that contributory negligence is to be proved as a defense, its purpose and scope have been understood to include any common-law or statutory fault of the person injured contributing in fact to his injury. Hanscomb v. Goodale, 81 N. H. 150, 151, 152, 124 A. 458; Judd v. Perkins, 83 N. H. 39, 42, 138 A. 312. The distinctions between contributory negligence and contributory illegality as judicially recognized and adopted are not thought to have been a legislative consideration in the enactment of the statute. It is not probable that in changing the burden of proof it was meant to limit the change to contributory negligence as defined by the courts. In the statutory use of the term reasonable consistency leads to a comprehensive inclusion of all contributory fault. As the term is capable of such a construction, the spirit of the statute invites a definition adopting it without abridgment.

If the decedent obeyed the statute, a conclusion that he was negligent is not compelled. Even if the train signals were given, the law does not impose an inference that he heard, or in due care would have heard, them. He was familiar with the crossing, and it was not a regular time for a train. The train was a special one, and, as has been said, made no stop at the station as most trains did. He was driving a lumber-laden truck. He may have been reasonably attentive to the situation and yet not have heard the signals. If he proceeded towards the crossing within the statutory speed limit, the obstructions to a view of the train may have caused him to be unaware of it until he was close to the tracks. There is no rule of law that, because the view was shut off, he should have stopped and listened or otherwise investigated in some particular manner. While he was required to take greater precaution in other ways than if he had a clear view (Bursiel v. Railroad, 82 N. H. 363, 365, 134 A. 40), this means only that, if care in some respect is unavailing, care in other ways which are availing should be used.

If the testimony of the train's speed of 40 to 45 miles an hour is adopted, it was a matter of 2 or 3 seconds for it to travel 120 to 200 feet. If the decedent's speed was 10 miles an hour or less, he traveled not over 45 feet in that time. A conclusion that he saw or should have been aware of the train before he was that distance or somewhat less from the crossing is not required. Employing the emergency doctrine in passing on his care, it is not a matter of law that he was at fault in his conduct after he realized his danger. The time and distance within which the truck could be stopped does not appear. A more or less instinctive effort to cross the track ahead of the train may have been a chance which care would not condemn.

Unless he was close to the tracks when first aware of the train, care on his part would have saved him. With any sort of watchfulness, if not sooner hearing the train, he would have seen it as soon as the freight cars ceased to obstruct his view. He might readily have turned to the right where there was ample open space, if there was insufficient time for stopping the truck short of the crossing. But where he was when the train first came in sight, whether he should sooner have been aware of it, whether he should have taken more precaution than he did, and what his opportunities for securing safety were after discovering it, cannot be definitely and positively told.

A finding that the decedent's speed was within the statutory limit or that he was careful would be wholly conjectural. But the evidence of excessive speed or negligence falls short of absolute proof. If accepted, proof would follow, but its acceptance 1st the jury's function. While they could not find him free from fault, they might not be satisfied to charge him with it. Since there may have been an emergency which the decedent did not carelessly help to create and in which he did not carelessly act, the burden of proving his fault has not been sustained to the point of complete demonstration.

The case differs from that of Collins V. Hustis, 79 N. H. 446, 111 A. 286, in which it conclusively appeared that the train was visible to the driver of the automobile in season for him to stop if he used care in proceeding towards the crossing. And in the cases of Morier v. Hines, 81 N. H. 48, 122 A. 330, and Bursiel v. Railroad, supra, the conduct and knowledge of the plaintiffs was so clearly disclosed as to make their negligence the only reasonable deduction to draw.

II. The last chance doctrine was submitted to the jury. This was error, in view of the evidence. The inferences from the evidence best inuring to the plaintiff...