Osgood v. Boston & M. R. R.

• Citation: 141 A. 132
• Parties: OSGOOD v. BOSTON & M. R. R. POWERS v. SAME.
• Decision Date: 06 March 1928
• Court: Supreme Court of New Hampshire

141 A. 132

OSGOOD

v. BOSTON & M. R. R.

POWERS

v. SAME.

Supreme Court of New Hampshire. Hillsborrough.

March 6, 1928.

Transferred from Superior Court, Hillsborough County; Burque, Judge.

Actions on the case, by Anson G. Osgood and James Powers, administrators, against the Boston & Maine Railroad, to recover for the death of the plaintiffs' intestates, Alonzo M. Carlton and Jennie C. Parkman, caused by a collision December 25, 1925, between an automobile in which the deceased were riding and the defendant's passenger train, upon a grade crossing on West Central street in the city of Manchester. The two cases were tried together. At the close of the plaintiffs' evidence the defendant's motion for a nonsuit in each case was granted. Case transferred on plaintiffs' exceptions. Exceptions overruled.

West Central street runs east and west, and crosses at nearly a right angle the defendant's main line at a point several hundred feet north of the Manchester Station. It also crosses Canal street easterly of the tracks at a point 75 feet from the nearest rail, and heads the northerly terminus of Bedford street westerly on the tracks; the two latter streets being substantially parallel with the railroad at this point. The crossing consists of three tracks which, beginning at the east, are known as the north-bound track, the south-bound, and the side track, and is protected by gates operated by a tender stationed north thereof and between the south bound track and the side track. The easterly rail of the south-bound track is 18.7 feet, and the westerly rail thereof 23.4 feet west of the easterly gate, which in turn is 61 feet from Canal street.

Carlton was driving a four-cylinder Willys-Knight coupe going from his business office in Manchester to his home in Goffstown. Mrs. Parkman was a passenger. He came south on Canal street and, turning westerly on to West Central, was struck by the defendant's south-bound train at 8:41 o'clock in the evening. The train was due at the station at 8:42 o'clock, and on time.

Carlton was 60 years of age, in good health and spirits, somewhat defective in hearing, but possessed of good eyesight as corrected by glasses. He had driven a car 4 1/2 to 5 years, was a good driver, and knew what a car could or could not do. The car was in good mechanical condition. He had been accustomed nearly every night of business days for several years to take the course home which he was taking on the evening of the accident.

It was a dark night. The vicinity of the crossing was lighted by two arc lights, one on Canal street and one on Bedford, at the intersection of these streets with West Central. The Bedford street light tended to blind a driver approaching from Canal street, but Carlton's car was equipped with a visor designed to shield the eyes from a dazzling light. The gateman and his movements were plainly visible, without a protecting eye shield, to a witness standing upon the northerly sidewalk of West Central street some over 30 feet easterly of the crossing.

The accident was observed by this witness, Milne by name, a pedestrian, who had crossed the tracks from the west and had reached the point indicated. He was called by the plaintiffs, and testified that when the car passed him it may have been going "10 or 11, or maybe 15—no more" miles per hour; that "it might be going any one of those speeds"; that it continued at the same speed until it was "about on" the south-bound track, when it stalled; that it started and moved about a yard and stalled again "right on the [westerly] edge" of that track and there remained until the south-bound train struck the "hind end" of the car. The witness estimated that it was 5 or 6 seconds before the car started up after it was first stalled, and that about half that period elapsed after it started . up again before it was hit by the train.

At the time when Milne came past the crossing tender's shanty the gateman was then standing at the gate control ready to lower the gates, and continued standing there facing east when the car passed the witness. When the car got upon the north-bound track the gates were slightly tipped, but were moved no further before the accident. While the car was stopped on the track the gateman, still standing at his post, "hollered." Later Milne saw him on the other side of his shanty pick up his red lantern and wave it for the train to stop. He was then facing east and a bit to the north. When he started to swing his lantern the train was "close behind the shanty," only a few feet away.

At some time while the car was stalled the first time, Milne, from his position about 30 feet east of the crossing, first saw the train, which was then about "4 telegraph poles" from the crossing and appeared to him to be going "fast," "about 40 miles" an hour,' or "about as fast" as it usually does. Following the accident the train was brought to a stop with the rear end of the rear car opposite or slightly north of the gate tender's shanty. Other facts appear in the opinion.

Osgood & Osgood and Anson G. Osgood, all of Manchester, for plaintiffs.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

SNOW, J. It is the plaintiffs' primary contention that the gateman failed in his duty to their intestates in permitting the car to enter upon the crossing in view of the proximity of the on-coming train. The question presented is whether the likelihood or probability of a collision was such that no person of ordinary prudence in the position of the gateman, in the situation there existing, would have permitted the car to enter upon the tracks when and as he did. Derosier v. New England Tel. & Tel. Co., 81 N. H. 451, 459, 461, 463, 130 A. 145; Tullgren v. Amoskeag Mfg. Co., 82 N. H. 268, 276, 277, 133 A. 4, 46 A. L. R, 380.

For the period of time which was allowed Carlton for the crossing we are wholly dependent upon the statement of Milne, who testified that the car proceeding at a continuing speed, which "may have been 10 or 11, or maybe 15" miles per hour, was stalled upon the easterly edge of the south-bound track for a period of 5 or 6 seconds, and again upon the westerly edge of that track for 2.5 to 3 seconds, when and where it was struck by the engine. It conclusively appears that except for the stallings of the car the accident would not have occurred. On the evidence most favorable to the plaintiffs, both as respects the speed (10 miles per hour) and the delay due to the stallings (7.5 seconds), the car, except for the time lost by such stallings, would have been somewhat more than 100 feet past the point of collision on arrival of the train.

The only evidence offered of unusual conditions here bearing on the likelihood of cars stalling was of the presence of a rise of 4 or 5 inches in the asphalt surface of the crossing between the tracks in one or two places and extending the width of the street. Opinions were given that differences in level have a tendency, by lowering the foot of an operator, to feed gas quickly and choke the motor and thus decrease the speed; and that a car is more likely to stall when going "slow." What was meant by "slow" is not defined. It is not to be inferred, however, that the witnesses meant that a speed of 10 miles per hour was likely to induce stalling, and it could not be found on the evidence that the gateman should have anticipated a reduction of...