Roberts v. Boston & M. R. R.

• Decision Date: 29 July 1898
• Citation: 45 A. 94,69 N.H. 354
• Parties: ROBERTS v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

45 A. 94

69 N.H. 354

ROBERTS

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsboro.

July 29, 1898.

Exceptions from Hillsboro county.

Case by Walter D. Roberts against the Boston & Maine Railroad. There was a judgment for plaintiff, and defendant excepts. Exceptions overruled.

George B. French and Wason & Jackson, for plaintiff.

Charles H. Burns, Charles W. Hoitt, and Jeremiah J. Doyle, for defendant.

CLARK, C. J. The plaintiff's evidence tended to prove the following facts: The plaintiff was riding in an empty job wagon, and, as he neared the crossing where the accident occurred, was driving at a slow trot. When about 70 feet from the crossing, he looked towards the east, and saw a heavily loaded freight train about 600 feet distant, moving slowly towards him. He had no view of the railroad towards the west until he reached a point about 30 feet from the crossing, when he looked towards the west, and saw no train approaching. The flagman stationed at the crossing stood very near the line of the sidewalk on the west side of the street, and about 15 feet from the tracks. He was facing the east, and looking in the direction of the approaching freight train. The plaintiff thought the flagman stood there for the purpose of warning travelers of the freight train, and heard no warning from him of the approach of any other. If the flag was waved, or any other warning given, by the flagman, of a train from the west, it was done after the plaintiff had passed the flagman, and was on his way across the tracks. The plaintiff heard no whistle, or bell, or sound of any train from the west, as he started to drive over the tracks at a slow rate of speed, and had no knowledge of the approach of a train from that direction until he had crossed the first track, and was very near the second, when he saw the engine from the west right upon him. This engine struck the plaintiff's team, and occasioned the Injuries complained of.

In cases of accidents at railroad crossings, the question of negligence is ordinarily one for the jury to determine. It is always a question for the jury when the facts are in dispute, or when, from the undisputed facts, different minds may arrive at opposite conclusions. Negligence is the failure to exercise such care and prudence as, under the circumstances, duty requires should be exercised. It is the omission to do something which a reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs,...