Shea v. Concord & M. R. R.

• Decision Date: 29 July 1898
• Citation: 69 N.H. 361,41 A. 774
• Parties: SHEA v. CONCORD & M. R. R.
• Court: New Hampshire Supreme Court

41 A. 774

69 N.H. 361

SHEA

v. CONCORD & M. R. R.

Supreme Court of New Hampshire. Hillsboro.

July 29, 1898.

Exceptions from Hillsboro county.

Action by John J. Shea administrator of Michael Cronln, deceased, against the Concord & Montreal Railroad. There was a verdict for plaintiff. Defendant excepted to an order denying a motion for nonsuit and for verdict Exceptions sustained.

The evidence tended to prove that at the time of the accident, and far some years prior thereto, there was a tract of land south of Auburn and west of Elm streets, in Manchester, extending to the defendant's railroad tracks, which was unfenced, and in the main unimproved. On this land, near the east side of the railroad, there was a lumber yard, a stable, and a storehouse, in which old machinery was stored. Between the east and west tracks there was a coal shed and an oil shed. Merchandise was carried to and from these sheds, by teams passing between said tracks, from the sheds to Auburn street There was a cartpath across the land from Elm street to a point north of the oil shed, and a footpath leading from Elm street across the lot used by the defendant's employes and persons employed in the hosiery mill in going to and from their work. This footpath was north of the oil shed. In the summer time, particularly in the evenings, people in the vicinity were in the habit of occupying the tract as a place for recreation. They played ball there, and would sometimes knock the ball onto the railroad tracks, where the boys would go after it. In the winter they coasted there, and some times in so doing would coast across the tracks. The police had been requested two or three times by the railroad authorities to keep the boys away from the tracks, and off the cars, and they drove them away once or twice a day, or whenever they found them there, after these requests. On the day of the accident the intestate, aged five years and nine months, and two companions, aged eight and nine years, respectively, went to this tract of land to play at hoop. They entered from Auburn street, and, after playing a while on the upper portion of the tract their hoops rolled down the Mil, across the railroad track, at a point south of the oil shed and of the end of the road leading from Auburn street between the tracks to said shed. A train of 15 or 16 empty coal cars was standing on the east track, the rear end of which was a little south of where the hoops crossed the track. Some beef cars were standing on the west track. All had been in the same position while the intestate had been on the lot. The boys ran after their hoops, and the intestate, after recovering his hoop, leaned against the rear or northerly end of the coal train. While standing in this position, the cars bumped together. The train was pushed towards the rear about one-half the length of a car, throwing the intestate upon the track, and inflicting injuries from which he died. No one else had been seen on this tract of land or around the railroad tracks through the afternoon of the accident, which happened about 4 o'clock. At the close of the plaintiff's evidence, the defendant moved for a nonsuit, and...