Romani v. Boston & M. R. R.

• Decision Date: 01 January 1924
• Docket Number: No. 1907.,1907.
• Citation: 123 A. 233
• Parties: ROMANI v. BOSTON & M. R. R. CAIN v. SAME.
• Court: New Hampshire Supreme Court

123 A. 233

ROMANI

v. BOSTON & M. R. R.

CAIN

v. SAME.

No. 1907.

Supreme Court of New Hampshire. Hillsborough.

Jan. 1, 1924.

Exceptions from Superior Court, Hillsborough County; Branch, Judge.

Consolidated actions by Henry A. Romani and William Cain against the Boston & Maine Railroad. Verdict for plaintiffs in each case, and defendant excepts. Exceptions overruled.

Actions to recover damages for personal injuries. The cases were tried together, with verdicts for the plaintiffs. Subject to exception, the superior court denied the defendant's motions for directed verdicts. There were also exceptions to the admission of evidence, to the remarks of counsel, and to a refusal to give requested instructions to the jury. The facts are stated in the opinion.

Kittredge & Prescott, of Milford, and Tuttle, Wyman & Starr, Timothy F. O'Connor, and Myer Saidel, all of Manchester (J. P. Tuttle, Willard Wight, and Myer Saidel, all of Manchester, orally), for plaintiffs.

Warren, Howe & Wilson, of Manchester (De Witt C. Howe, of Manchester, orally), for defendant.

PEASLEE, J. These are suits by the driver of an automobile and his passenger to recover damages for injuries received in a collision between the automobile and the defendant's freight train at Jones' crossing in Milford. The view of the respective actors was largely obstructed by a hill extending alongside the defendant's right of way nearly up to its intersection with the state highway from Milford to Wilton. The defendant had installed an automatic bell to warn travelers of the approach of trains; but there was evidence that the bell was inefficient for that purpose, and that complaint concerning it had been communicated to the defendant. There was evidence that the statutory crossing warning was not given and that the train was running 40 miles an hour.

Romani was driving a car that was somewhat noisy, and approached the crossing at a speed of not over 10 miles an hour. As they passed the automatic bell, both he and Cain were giving attention, but heard no sound. When they got within 30 or 40 feet of the crossing, they looked in the direction of the approaching train, saw nothing, looked in the opposite direction, and then straight ahead across the track, where three highways converged, and over one of which an automobile was approaching. They were about 10 feet from the track when they discovered the train. Romani applied the brakes and attempted to turn the car, but it was too late to avoid a collision.

The defendant does not contend that a verdict against it could not be sustained upon such a state of facts, but it claims that as to some of them there was no sufficient evidence, and also that other facts were conclusively shown, whereby it appeared that the defendant's fault was not causal and that the sole cause of the injury was the fault of the plaintiffs.

A careful examination of the evidence leads to the conclusion that there was some credible evidence on each charge of fault on the part of the defendant. Whether it was so overborne or outweighed by conflicting evidence that a verdict based upon it ought to be sot aside as against the evidence is not a matter to be passed upon here.

The defendant's main contention appears to be that measurements and surveys show that the train was in sight for so great a distance that Romani would of necessity have seen it in ample season to stop if he had used reasonable care. it is urged that Romani had the last clear chance to avoid the accident, and that therefore his fault bars not only his recovery, but also that of the passenger. Morier v. Hines (N. H.) 122 Atl. 330.

The claim that, if Romani looked, he must have seen the train, is based upon certain measurements which are by no means conclusive of the matter. The top of a locomotive smokestack is about 12 feet above the rail. The defendant's engineer testified that from a point in the highway 33 feet from the rail a handkerchief displayed at that height could be seen nearly 500 feet down the track. He did not testify whether more than the mere top of the smokestack could be so seen, nor at what distance the track was visible, nor where any other portion of the locomotive would come into view.

On the other hand, the plaintiffs' engineer testified to observations made when trains were approaching, and that he thought that one must be within 30 feet of the crossing to "see up the track 125 or 130 feet." In addition to the evidence of these witnesses, the jury had a view.

Upon this evidence the jury might find that, even though it was true that Romani could have seen the tip of the smokestack if he had deliberately surveyed the entire outline of the intervening hill, still the practical proposition was whether he looked up the track as the average person would look for an approaching train, and so...