Small v. Boston & M. R. R.

• Decision Date: 02 February 1932
• Parties: SMALL v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

159 A. 298

SMALL

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

Feb. 2, 1932.

Transferred from Superior Court, Merrimack County; Burque, Judge.

Action by Marion Small, administratrix, against the Boston & Maine Railroad under Vermont law for negligently causing the death of plaintiff's intestate. After trial by jury and verdict for plaintiff, the case was transferred on exceptions to the denial of the defendant's motion for a directed verdict, relative to the charge, and to argument.

New trial ordered.

Murchie, Murchie & Blandin and Alexander Murchie, all of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, and Jonathan Piper, all of Concord, for defendant.

ALLEN, J.

The decedent, in a drunken state, was walking northerly on the defendant's track near the railroad station at Windsor, Vt. A train from the south struck him. As the train approached him, warning signals of the whistle were sounded, to which he paid no apparent attention in the time he had before being struck.

The plaintiff's only claim of liability was upon the last chance rule in force in Vermont. The decedent was negligent in becoming intoxicated, and hence was in fault for creating his danger. But if in his situation of peril he was too irresponsible to be able to use care to save himself, or, if not thus irresponsible, the signals were not given in time for him to act, and if the defendant was or should have been aware of his peril and might not assume that he would save himself, its ensuing negligence imposed liability. In Vermont, "Briefly, the doctrine presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence has occurred when the defendant could, and the plaintiff could not, by use of the means available, avert the accident. In such case, the negligence of the parties creating the situation is regarded as remote and that of the defendant in not averting the accident, after the peril is or should have been discovered, becomes the sole proximate cause of the injury. * * *

"If negligence of the plaintiff is found, the test is (1) whether such negligence had ceased to be operative and become a mere condition or circumstance of the accident; and (2) whether there was, in legal contemplation, subsequent negligence on the part of the defendant." Lachance v. Myers, 98 Vt. 498, 505, 129 A. 172, 174.

In further limitation of the scope of the rule, the plaintiff's negligence is causal unless it appears that the defendant was or should have been aware of his danger and might not reasonably assume that he would save himself. La Mountain's Adm'x v. Railroad, 93 Vt. 21, 106 A. 517; Miller v. Railway, 95 Vt. 69, 113 A. 524.

The rule as thus defined is enforced in other Vermont cases, among which may be cited the following: French v. Railway, 76 Vt. 441, 58 A. 722; Flint's Adm'r v. Railway, 82 Vt. 269, 73 A. 590; Aiken v. Metcalf, 92 Vt. 57, 102 A. 330; Zuverino v. Railroad, 101 Vt. 261, 143 A. 308.

The jury may have properly reached these conclusions. The train's speed was 18 to 20 miles an hour. Under the conditions existing it could be stopped in 130 feet. It was not stopped until it had gone 150 feet after striking the decedent. He was seen by the fireman of the locomotive when he was 350 feet ahead. It took the train at least 12 seconds to reach him. The time needed to call for the brakes to be set and for the engineer to set them was a matter of 2 or 3 seconds. Ample opportunity to stop the train in season to save the decedent was had after it became apparent that he was heedless of the warning whistles if they were seasonably blown. This delay in braking the train might be found negligence ensuing upon discovery of the decedent's peril and his disregard of it.

As to the decedent's freedom from concurring negligence, it might be found that the warning whistles were not sounded in time for him to step from the track and save himself. While there was much evidence to the contrary, the evidence that the train could be stopped in 130 feet, but went 150 feet after striking the decedent, justified the inference that the brakes were not set until the train was close upon him. And the testimony that the brakes were set in almost concurrent action with the blowing of the whistle and on its fourth blast, gives support for the conclusion that the signals came too late to be heeded with saving action.

Under such an inference from the evidence liability might be established if the decedent had been sober, and hence his intoxication might be disregarded as without causal effect. It therefore becomes unnecessary to pass upon the sufficiency of the evidence to show the decedent's incapacity to use care enough to save himself when the signals were given. The last chance issue was for the jury.

With reference to exceptions to the charge and to the denial of requested instructions, one requested instruction was that an intoxicated person must use the care of a sober person in the same circumstances and that incapacity from intoxication to use care makes no difference. In connection with the last chance doctrine, such an instruction would nullify it in cases of injury to one incapacitated by intoxication.

An intoxicated person is held to the care of sobriety. But this is because responsibility for conduct while intoxicated arises from negligence in becoming intoxicated and thus depriving one's self of the ability in part or in whole to use care. The conduct of intoxication being due to the intoxication, it is due to negligence, since the intoxication is negligent. If one does not act as a sober person because he cannot, the law does not blind itself to the fact, and recognizes the impossibility of sober...