Murray v. Boston & M.R.R.

• Decision Date: 30 November 1966
• Citation: Murray v. Boston & M.R.R., 224 A.2d 66, 107 N.H. 367 (N.H. 1966)
• Parties: Madeleine Y. MURRAY et al. v. BOSTON & MAINE RAILROAD.
• Court: New Hampshire Supreme Court

Page 66

224 A.2d 66

107 N.H. 367

Madeleine Y. MURRAY et al. v.BOSTON & MAINE RAILROAD.

Supreme Court of New Hampshire.

Argued June 7, 1966.

Decided Sept. 30, 1966.

Rehearing Denied Nov. 30, 1966.

Upton, Sanders & Upton, Robert W. Upton, Concord, for plaintiffs.

Sheehan, Phinney, Bass & Green, and Alan L. Reische, Manchester, for defendant.

BLANDIN, Justice.

Mrs. Murray, an active woman sixty-nine years of age and in excellent health, claims that she fell from the bottom step of a car on the defendant's train while attempting to board it at Claremont Junction, due, as she says, to the fact that the defendant's trainman negligently failed to assist her.She testified that she asked a trainman to get her bags, which were just outside the station door, and upon his brusquely telling her to get aboard, she observed that 'this looks like a very high step (but) I will try it.'Then, supposing that he would be nearby to help her, she made the attempt, taking hold of the sloping hand holds which ran parallel to the steps.She did not use the vertical rails which were nearer to her.Her hands slipped on the smooth hand holds and she slid back into a jackknife position.She called out that she was falling, but no one came to aid her and she did fall, landing on the small of her back, while her head struck a rail of the tracks.

The defendant's trainman denies that he gave her any preemptory orders to board the train or that she said it was a high step or anything of that nature.He testified that all that passed between them was her request that he get her bags, and upon this he immediately walked away to do so.He stooped to pick them up with his back to Mrs. Murray, and upon straightening up and turning around, he saw her sitting on the platform.He had heard no cry for help and says that she had indicated to him that she would not try to get aboard until after he returned with her luggage.

Meanwhile, the conductor, as soon as he got off the car, had gone into the station to register his train, as was his duty.He came out after she had fallen.One of Mrs. Murray's two companions, who was standing near her on the platform, testified that when she looked at the steps it never occurred to her that the plaintiff would need any help in ascending them.There was other evidence, some of which was conflicting, which it seems unnecessary to detail, although parts of it will be referred to later.The plaintiffs excepted to the Court's failure to grant their request No. 3, which reads as follows:

'The Boston & Maine Railroad, as a common carrier of passengers for hire, was bound to exercise such care, skill and diligence in transporting passengers as would a reasonably prudent man under like circumstances.'

Upon this subject, the Court charged as follows:

'Now, the defendant in this case is a corporation, a railroad corporation, and a common carrier of passengers for hire, the Boston & Maine Railroad * * * Now, of course, the fact that a person is a passenger for hire in a train, as the plaintiff was in this case, does not make the railroad an insurer or a guardian of that person against any injury that they may sustain.The railroad does not insure its passengers against all injury happening to them while they are traveling upon a train.A person is entitled to recover, however, as they would be in any other situation, if they are injured by reason of the negligence of the defendant railroad, if they themselves are free of negligence at the time of the occurrence.

'The claim of the plaintiff here is that the defendant railroad was negligent in that they failed to assist the plaintiff, Mrs. Murray, in boarding the train at the station on the day in question in May, and that as a result of that failure the plaintiff fell and was injured while boarding the train.Now, it is for us to consider all of the evidence on this particular issue, determining the conduct of all the parties, that is, the defendant's agents and the plaintiff, in order to determine whether or not, first, there was an apparent necessity for assistance to the plaintiff in boarding the train, because I have to instruct you that the defendant railroad is under no duty to furnish assistance to a passenger in boarding a train unless there is an apparent necessity to do so.It is for you to consider all the circumstances surrounding this case to determine that.That means you will consider the situation with reference to the entrance to the train, the condition of the train itself, the condition of the various banisters or railings which people would use to assist themselves in boarding the train, the distance of the steps from the platform, the actual actions of the parties at the time, as to whether or not there was a request for assistance, the appearance of the plaintiff as to her age and as to whether it would be apparent to a person that she would need assistance, and all of the other factors, to determine whether or not as far as the defendant's agents were concerned there existed an apparent necessity for assistance to Mrs. Murray in boarding this train.

'If you find by a preponderance of the evidence that there was such an apparent necessity, then you will consider whether or not they negligently failed to assist her to mount the train at the time the accident occurred.If you find that they did fail to assist her, and that there was an apparent necessity that she be assisted, and that as a result of their negligent failure to assist her under all the circumstances, and of course this includes whether or not they were available to assist her at the time she should have been assisted, under all those circumstances if you find the defendant railroad was negligent by its agents' acts, you will then have found upon that issue for the plaintiff.* * *

'Now, gentlemen, there has been evidence introduced of certain rules of the railroad and customs of the employees of the railroad in situations of this nature.I instruct you that you may consider and properly consider whether or not the railroad employees complied with the rules of the railroad and whether or not they complied with their customs that they had established, as evidence of whether or not the defendant railroad was negligent in this particular case.

'You will understand, of course, that while the rules of the defendant railroad and the customs which they have observed over the years are evidence as to the methods by which the railroad operated, it may not properly be considered entirely as a substitute for your own good judgment as to whether or not the railroad under all the circumstances was negligent or not negligent.For that, of course, you must still apply the familiar rule of whether or not they acted under all the circumstances as a reasonably prudent person would have acted.This involves our old friend, the reasonably prudent person, that is, the person not necessarily acting the way you think you would act, but a person who would act not as the most negligent person and not as the most careful person, but the way you yourselves feel an average, ordinary, prudent person under the circumstances of this defendant's agents would have found that they would or should have acted.'

The essence of the plaintiffs' request No. 3 is that the defendant is a common carrier and bound to exercise such care toward its passengers 'as would a reasonably prudent man under like circumstances.'The Court had told the jury that the defendant was a railroad corporation carrying passengers for hire on a train, which was a fact obvious and stressed throughout the trial.He also charged that they should apply the 'familiar rule' of judging the defendant's conduct by 'our old friend, the reasonably prudent person' and that the railroad through its agents was bound to 'act under all the circumstances as a reasonably prudent person should have acted.'

It was not necessary to use the exact words of the request.Mutterperl v. Lake Spofford Hotel, 106 N.H. 538, 216 A.2d 35.We believe that, taking the charge as a whole (Cyr v. Sanborn, 101 N.H. 245, 250, 140 A.2d 92), the law was stated correctly and that the jury understood it.This is sufficient.M A C Finance Plan of Nashua v. Stone, 106 N.H. 517, 214 A.2d 878.However, the plaintiffs urge that no apparent necessity to help Mrs. Murray arose until she tried to board the train and that then there was no one available to assist her.They argue from this that under the Court's instructions the jury had 'little or no choice but to return a verdict for the defendant.'We do not agree.The charge was broad and repeatedly emphasized to the jury that they must consider all the surrounding circumstances in deciding whether an apparent necessity for aiding the plaintiff existed.This clearly referred, among other factors, to the plaintiff's apparent age, to her testimony that she looked upon the steps with apprehension, to what she said to the trainman, and to her expectation that he would be on hand to help her if necessary.This evidence, which the Court told the jury to consider, if believed would have warranted a finding that an apparent necessity existed for aiding her before she tried to mount the steps.They were not constrained under the charge to find a verdict for the defendant.On the contrary, the instruction correctly stated the law and properly left it to the jury to decide in all the circumstances whether they believed the plaintiffs' evidence that there was an apparent necessity for assisting her before she attempted to get on the train.Had they so believed, they could have returned a verdict in her favor.It follows from what we have said that the plaintiffs' exceptions to the refusal to grant their third request are overruled.

The plaintiffs' request No. 4 is as follows:

'The defendant enacted or adopted and printed in its book entitled 'Rules for the Government of the Operating Department', a rule as follows: '815 (Conductors) must see...