Robinson v. Boston & M. R. R.
| Decision Date | 03 May 1932 |
| Citation | 160 A. 473 |
| Parties | ROBINSON v. BOSTON & M. R. R. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Branch, Judge.
Action for negligence by Henry D. Robinson against the Boston & Maine Railroad. The case was tried to a jury which rendered verdict for plaintiff. Case transferred on defendant's exception to the denial of its motion for a directed verdict.
Judgment for the defendant.
Hurley & Connor, of Manchester, for plaintiff.
Warren, Wilson, McLaughlin & Bingham, of Manchester, for defendant.
The plaintiff, intending to take a train for Concord at Laconia, arrived at the Laconia station immediately after the arrival of the train. He entered upon the station platform near its easterly end. The train was on a track at his right side and its rear end was about twenty-five feet ahead of him as he proceeded towards it. He undertook to board the last car of the train at its rear entrance on the side towards the station platform. The car was equipped with vestibule doors, and the door at this entrance was closed. A vestibule door when closed is practically flush with the side of the car. Its bottom is level with the car platform, and a trap is dropped to cover the space above the steps from the car platform to the door. There is thus an area open from the outside above the steps and below the level of the car platform.
The plaintiff stepped up on the lower step of the car, took hold of a grabiron at the side of the door, and continued for one-half to three-quarters of a minute until the train started in a vain attempt to open the door. In his position, his body leaned outwards from the door, while his feet, resting on the lower step, were under it. The door at the bottom could be shaken and moved slightly inwards, but above at the knob it held firm. The plaintiff persisted in his effort to open the door after the train started. When he first thought of stepping off, he feared injury in doing so and made up his mind to ride in his position to the next station. Some cars on a side track ahead of him appeared to give him insufficient clearance, and he then dropped to the ground and was hurt. At that time the train had traveled about 350 feet with steadily increasing speed.
The plaintiff was unfamiliar with cars equipped with vestibule doors. He expected to be able to open the door, thinking it was stuck, and also thinking that some one might open it from the inside.
Upon the issue of the defendant's negligence, it may not be charged with fault, for the plaintiff's undertaking to enter the train as he did. There was nothing in the appearance of the closed door that invited effort to open it. The knob was not within convenient reach of one standing on the station platform, and the door was an obstruction to one climbing the steps. With the door closed it was not reasonably to be expected that one would seek entrance by undertaking to open it. Until the train started, the door on the same side at the front end of the car was open and a trainman stood on the station platform near it. The view was clear and open for the entire length of the car, and any observation would have shown that only the entrance at the front end was in use at the time.
It was the defendant's claim that the plaintiff did not step up on the car until the train had started, and the conductor and brakeman both testified that they looked towards the rear end of the train just before it did start without seeing anyone, and that there was nothing to shut off the view. But if the plaintiff was on the steps, as he testified, and the trainmen looked in his direction, the jury might infer that they saw him. Negligence of the defendant in starting the train while the plaintiff was trying to enter and in permitting him to ride on it in the position he was in might therefore be found.
As to the plaintiff's negligence, from the time he attempted to board the train until it had gone far enough to gather speed, he gave no thought to his safety. His attention was wholly directed to gaining entrance into the car. One does not use due care for his safety who does not think at all about it. Cronin v. Columbian Mfg. Co., 75 N. H. 319, 74 A. 180, 29 L. R. A. (N. S.) 111; Sevigny v. J. Spaulding & Sons Company, 81 N. H. 311, 313, 125 A. 262; Collette v. Boston & M. R. R., 83 N. H. 210, 217, 140 A. 176. The duty to give attention to one's safety in a position of obvious danger is imposed because the ordinary man gives that attention. A plaintiff may not say that he was not...
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...to a plaintiff and the plaintiff also breaches a duty of care she owes to protect herself against the harm. See Robinson v. Railroad, 85 N.H. 474, 475–76, 160 A. 473 (1932). Although this theory is more aptly referred to as contributory negligence, the court has, at times, used the term "as......
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