Olsen v. Boston & M. R. R.

• Decision Date: 25 June 1925
• Parties: OLSEN v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

130 A. 213

OLSEN

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

June 25, 1925.

Rehearing Denied Sept. 1, 1925.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Action by Adolf Olsen against the Boston & Maine Railroad. Verdict for plaintiff, and cause transferred on defendant's exceptions. Exceptions sustained, and judgment rendered for defendant.

Case for negligence. Trial by jury, and verdict for the plaintiff. Transferred by Sawyer, J., on the defendant's exceptions (1) to the denial of its motions for a nonsuit and a directed verdict; and (2) to the submission of the case to the jury under the doctrine of the last clear chance.

While crossing the defendant's street car track at West Concord, the plaintiff was struck by an electric car and injured. He was about 56 years old, and in the full possession of his physical and mental faculties. He had lived in Concord for nearly 20 years, and during much of that time had worked on ice teams. On the day he received his injury he and his employer, Anderson, were delivering ice in a motortruck.

North State street at the place of the accident runs nearly north and south, and the track is on the westerly side of the street. Shortly before the accident Anderson sent the plaintiff to Harrington's store to ask if ice was needed. The store was situated west of the track, and the ties in front of the store were "filled," or covered with earth, to form a crossing.

According to the plaintiff's evidence, Anderson stopped the truck about 15 or 20 feet south of this crossing. On the north side of the store there was a back entrance where the ice was taken in. The distance from a point in the highway opposite this back entrance to the rear of the truck was about 30-feet.

Olsen, having received an order for ice, notified Anderson, who descended from the truck (the engine of which was still running), cut the ice into two 70-pound cakes, and started toward the store with one of them, leaving Olsen to follow with the other. Olsen testified that when he had taken two or three steps he looked south and saw no car. He could then see down the track a distance of only 35 or 40 feet, since his view was obstructed by the truck. For nearly 700 feet south of the crossing the track ran practically straight.

It was customary for the defendant's motormen, when passing vehicles near the track, to diminish speed and to sound the gong. The plaintiff stated that he knew of this custom, and expected the bell would ring if a car was approaching, but that he "never heard any bell that day." He did not look again to see if a car was in sight, but walked forward to the crossing and stepped deliberately upon the track. He then heard a noise, and, turning his head, saw the car "right on" him. He was struck by the car, and thrown to the northwest side of the crossing.

Meanwhile Anderson had crossed the track in safety and delivered his ice. He did not learn of the accident until he had left the store. Further facts are stated in the opinion.

Robert W. Upton and John M. Stark, both or Concord, for plaintiff.

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

MARBLE, J. 1. In the following cases where adult pedestrians have been injured while crossing or walking upon railway tracks, recovery has been denied. Currier v. Railroad, 78 N. H. 586, 97 A. 741; Coyle v. Railroad, 77 N. H. 604, 94 A. 509; Bonnin v. Railroad, 77 N. H. 559, 94 A. 196; Doucette v. Railroad, 77 N. H. 419, 92 A. 738; Connelly v. Railway, 77 N. H. 280, 90 A. 788; Chabott v. Railway, 77 N. H. 133, 88 A. 995; Greenwood v. Railroad, 77 N. H. 101, 88 A. 217; Lord v. Railroad, 74 N. H. 39, 65 A. Ill; Batchelder v. Railroad, 72 N. H. 528, 57 A. 926; Myers v. Railroad, 72 N. H. 175, 55 A. 892; Waldron v. Railroad, 71 N. H. 362, 52 A. 443; Davis v. Railroad, 70 N. H. 519, 49 A. 108; Gahagan v. Railroad, 70 N. H. 441, 50 A. 146, 55 L. R. A. 426.

Although a pedestrian is not subject to a more stringent rule of law than that which governs other travelers, the fact that he has "nothing to control except his own locomotion" (Bonnin v. Railroad, supra. 562 ) is a distinguishing circumstance of material importance on the issue of contributary negligence—an issue which the jury must determine unless it conclusively appears that, at the time of the accident, the injured person was not in the exercise of ordinary care. Collins v. Hustis, 79 N. H. 446, Ill A. 286.

In support of his contention that the defendant has not sustained its burden on this issue (Laws 1923, c. 13), the plaintiff calls attention to the following facts: He looked south on leaving the store and again as he was leaving the truck; he was also watching the highway for automobiles that might be coming from the north; he expected the motorman of any car that might be approaching to sound the gong, and, hearing no gong, believed it was safe to cross the track.

The plaintiff testified that, when he came out of Harrington's store and looked south, he had an unobstructed view of the track for a distance of over 700 feet. The fact that no car was then in sight, however, did not absolve him from the duty of looking again, since the time consumed in returning to the truck, reporting to Anderson, cutting and weighing the ice and preparing it for delivery must have been substantial. When he looked the second time he admits that he could see only 35 or 40 feet, because the truck cut off his line of vision. But he knew that this was so, and also knew that he could obtain a clear view as he came nearer the crossing. He was aware that cars were running every few minutes, and reasonable care on his part demanded some precautionary act approximately contemporaneous with the impending danger. He could not elect to watch only for automobiles, and close his eyes to an equally perilous situation. Nor was he justified in relying altogether upon the gong. Gahagan v. Railroad, supra, 448 . As defendant's counsel have suggested, if he had consciously listened for the approach of the car he would have heard it unless the noise of its approach was drowned by the noise of the automobile engine, which he knew Anderson had left running.

The instant case is clearly distinguishable from those cases in which adult pedestrians have been permitted to recover.

In McGinley v. Railroad, 79 N. H. 159, 106 A. 641, the locomotive which struck the plaintiff was so completely enveloped in steam and was moving so noiselessly and so slowly that the plaintiff was justified in thinking that it was standing still. The case of Nawn v. Railroad, 77 N. H. 299, 91 A. 181, was an action for the death of an employee put to work in a dangerous place and killed a few minutes later. The evidence in Bourassa v. Railway, 75 N. H. 359, 74 A. 590, tended to prove that the plaintiff, before entering upon the track, "looked up the track, and...