Sigel v. Boston & M.R.R.

• Decision Date: 31 January 1966
• Citation: 107 N.H. 8,216 A.2d 794
• Parties: Selma SIGEL et al. v. BOSTON & MAINE RAILROAD et al.
• Court: New Hampshire Supreme Court

Page 794

216 A.2d 794

107 N.H. 8

Selma SIGEL et al. v. BOSTON & MAINE RAILROAD et al.

Supreme Court of New Hampshire.

Argued Nov. 3, 1965.

Decided Jan. 31, 1966.

Devine, Millimet, McDonough, Stahl & Branch, Manchester, (Joseph A. Millimet, Manchester, orally), for plaintiffs Selma Sigel and Saul Sigel and Matthias J. Reynolds, Administrator of the Estate of John S. Wilder.

Upton, Sanders & Upton, Concord, (John H. Sanders, Concord, orally), for plaintiff Matthias J. Reynolds, Administrator of the Estate of John S. Wilder.

McLane, Carleton, Graf, Greene & Brown, Manchester, (Kenneth F. Graf, Manchester, orally), for plaintiff Ida Detwiler.

Harkaway & Barry, Nashua, (Aaron A. Harkaway, Nashua, orally), for plaintiff William P. Sullivan, Administrator of the estates of Wrenn passengers.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and Sheehan, Phinney, Bass, Green & Bergevin, Manchester, (William L. Phinney, Manchester, orally), for plaintiff-defendant Boston & Maine Railroad.

James L. Ryan and Hamblett, Kerrigan & Hamblett, Nashua, and Danais & Danais, Manchester, for plaintiff-defendant Leo J. Wrenn, Administrator.

Burns, Bryant & Hinchey, Dover, and Sweeney & Kelly, Nashua, (Robert E. Hinchey, Dover, orally), for defendant Koppers Co., Inc.

BLANDIN, Justice.

The defendant Railroad, hereinafter referred to as the defendant, in its thorough and searching brief, argues that its motions for nonsuits and directed verdicts should have been granted. It advances several grounds for this position, which we will take up in order.

The first is that 'There is no evidence whatsoever that the Budd car's speed of 70 miles per hour over the crossing in itself caused, or helped to cause, the accident.' The defendant says that from the moment the engineer knew or should have known that the deceased driver of the truck, Robert Wrenn, was not going to stop at the crossing, the accident was inevitable regardless of the train's speed. We believe this argument misses the point involved in the issue of speed. The Court's charge taken as a whole made it plain to the jury that the speed of 70 miles per hour, which was admitted by the Railroad, was to be considered as an element in determining whether in all the circumstances the broad charge of negligence leveled against the railroad for failure to provide reasonably safe crossing protection was sustainable. This instruction was correct, provided that the record warranted it. Stocker v. Boston & M. R. R., 83 N.H. 401, 405, 143 A. 68. In the case now before us, the evidence and all reasonable inferences therefrom, construed most favorably to the plaintiffs (Leonard v. City of Manchester, 96 N.H. 115, 70 A.2d 915), would permit the following findings by the jury:

The accident giving rise to these suits resulted from a collision between a Boston & Maine Railroad Buddliner, being passenger train No. 42, and a truck driven by Robert Wrenn, at about 8:30 a. m. on December 7, 1960. The Buddliner was proceeding southerly from Laconia to Boston. It collided with the truck, which was traveling westerly, at the Hills Ferry crossing in the northerly part of the city of Nashua. The track over which the train was running was part of the defendant Railroad's main Montreal-Boston line. During each week day fourteen Buddliners went over this crossing, seven of which were south bound and seven north bound. The south bound trains traveled over the crossing at 70 miles per hour and the north bound trains passed over it at a slower rate. Several freights also went over the crossing in each direction and on every weekday the 'Nashua Switcher' proceeded over the crossing on its round trip from the Nashua station several miles south of the crossing to the premises of Koppers Company, Inc., located a quarter of a mile north of the crossing. The south bound Buddliners, in accordance with Railroad rules, began slowing down a quarter of a mile south of the crossing so that one-half mile south of it they traveled at 30 miles per hour, at which speed they continued to the Nashua station.

At the time of the accident, the crossing was not and never had been equipped with any automatice signaling devices indicating the approach of trains. A cross buck railroad crossing warning sign was located on the northerly side of the Hills Ferry Road about 100 feet west of the crossing. This was mounted on a pole about 10 feet high and bore the words 'Railroad Crossing.' Another sign attached below had the inscription 'Three tracks.' There were no railroad crossing signs on the east side of the crossing. The Hills Ferry Road, upon which Wrenn was traveling, leads off the Daniel Webster Highway and runs generally east and west, intersecting the railroad at a right angle. The crossing itself is about 17 feet wide. Motor vehicle access to it was by the Hills Ferry Road.

A large tract of land lying easterly of and adjacent to the tracks, bounded on the south by the Hills Ferry Road and on the east and northeast by the curving Merrimack River, was owned by the Railroad and in 1923 a wood treating plant was built on the premises, which were then leased to a predecessor of the defendant Koppers Company, Inc. The leased area contained about nine miles of track, most of which were parallel to the main line. Koppers Company, Inc., which first leased the premises in 1944, was engaged in treating wood products. Three huge treating cylinders were located at the north end of the treating plant structure which in turn was 160 feet easterly of the main railroad line and 750 feet north of the crossing. There were numerous other structures, including a debarking or derosser plant situated easterly of the main plant, a gasoline storage tank at the south end of the main plant, several fuel oil tanks just east of it, an office building north of the main plant with a large parking area for vehicles, and a mill building northeast of the plant. Originally, there were 14 or 15 houses owned by Koppers Company, Inc. and occupied by its employees and their families on the west bank of the river, although these had decreased to two or three houses at the time of the accident.

Motor vehicle or pedestrian access to the Koppers plant for several years before the accident was via Hills Ferry Road and the crossing only. This road east of the crossing was a gravelled, bumpy road, with numerous potholes, which immediately east of the crossing ran practically straight north parallel to the main line, past the main Koppers plant and beyond to the north. Throughout this large area there were stored in separate locations all types of processed wood material, most of which was owned by various customers, and some by Koppers itself. Railroads, whose treated ties were stored on the premises, included the Boston & Maine, the Maine Central, the Bangor and Aroostook, and the Rutland. The utilities whose processed poles and other wood materials were stored there included the Western Electric, Boston Edison, Public Service Company of New Hampshire, and the New England Telephone & Telegraph Company. Thus, there were separate large piles of railroad ties, posts, poles, piling and other wood material throughout this whole area. Koppers' annual business at this location totalled $2,000,000, its largest treating contracts being those with the Boston & Maine, Bangor and Aroostook, and Rutland railroads.

At the time of the accident, the plant employed over 100 employees and the crossing was subjected to constant heavy use by great numbers and varieties of motor vehicles traveling to and from the plant area. This traffic included three trucks owned by Koppers; trucks and semi-trailers of other parties hauling posts, lumber, ties and poles up to 90 feet in length; tankers transporting gasoline, diesel, and fuel oil; trucks delivering cylinders of propane gas used by Koppers for branding purposes; vehicles of arriving and departing employees, most of whom used their own automobiles; pleasure vehicles of business visitors; vehicles delivering milk and groceries to the families living on the River; and occasional police and fire vehicles.

The land east of the Railroad right-of-way and south of the Hills Ferry Road was owned by the City of Nashua, whose trucks, plows, and mechanical loaders also used the crossing, hauling loam to the city and plowing snow in the winter. In brief, the motor vehicle use of the crossing was constant.

The tracks at the crossing, from west to east, consisted of the southbound main line, the northbound main line, which switched onto the southbound approximately 200 feet north of the crossing, and an 'A' track which ran northerly parallel to the main line for about 4,600 feet. The 'gon' (gondola) track, which also ran north several thousand feet but not quite parallel to the main line, switched off 'A' track as it ran over the crossing. The so-called 'south ladder track,' running east and west at the south end of the premises and the 'north ladder' track running from northwest to southeast at the north end of the premises, served to switch between the numerous tracks which ran north and south and roughly parallel to the main line. These tracks within the yard itself thus consisted of the following from west to east: 'A' track on which the Nashua switcher left off inbound cars, 'B' track (which switched off 'A' at a northerly point in the yard) on which the Koppers' switcher left all outbound cars for removal by the Nashua switcher, 'C' track (which switched off 'B' at a more northerly point in the yard) used largely for storage purpose, the 'gon' track which, as it proceeded away from the crossing, ran somewhat northeasterly; the crane track; the tram track; the scale track; the adzing track; the service (or mill) track; and Tracks 1 through 8, the last being close to the river bank.

Loaded and unloaded cars were moved throughout this extensive system by Koppers' diesel powered switcher which was about 15' long, 8' wide, and 10' high...