Smith v. Boston & M. R. R.

• Decision Date: 05 March 1935
• Citation: 177 A. 729
• Parties: SMITH v. BOSTON & M. R. R. (two cases).
• Court: New Hampshire Supreme Court

177 A. 729

SMITH

v. BOSTON & M. R. R. (two cases).

Supreme Court of New Hampshire. Rockingham.

March 5, 1935.

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Exceptions from Superior Court, Rockingham County; Burque, Judge.

Action by Mabel Johnson Smith, administratrix of the estate of Mansfield Johnson, deceased, and Florence A. Smith against the Boston & Maine Railroad. Verdicts for plaintiffs, and defendant brings exceptions.

New trial.

Case to recover for the death of Mansfield Johnson and for personal injuries of Florence A. Smith, sustained while the two were walking on the defendant's right of way on January 6, 1928. There was a trial by jury, with a view, which resulted in verdicts for both plaintiffs. Transferred by Burque, J., on the defendants' exceptions to denial of motions for nonsuits and directed verdicts, to the admission and exclusion of evidence, to the refusal of the court to withdraw certain issues and evidence from the consideration of the jury, to the allowance of certain portions of the arguments of plaintiffs' counsel, and to the denial of certain requests for instructions. The facts appear in the opinion. For brevity the deceased and Miss Smith will be referred to as plaintiffs.

Robert W. Upton and John H. Sanders, both of Concord, for Mabel Johnson Smith.

Sleeper & Perkins, of Exeter (Win. H. Sleeper, of Exeter, orally), for Florence A. Smith.

Hughes & Burns, of Dover (S. M. Burns, of Dover, orally), for defendant.

PAGE, Justice.

The deceased was killed, and Miss Smith was injured, while walking on the track of the defendant near Rockingham Junction at about quarter before 7 in the evening. At this point the two main-line tracks run north and south, but the easterly track is known as the east-bound, and the other as the west-bound. These tracks are crossed at the junction by the defendant's line from Concord to Portsmouth, and the station building is located north and west of this intersection. The deceased and Miss Smith were struck from the rear by a portion of a freight train backing southerly on the east-bound track while they were walking in the same direction, on the same track, bound for the village of Newfields. The evidence was conflicting as to the exact point of accident, but for purposes of this discussion it may be assumed that it was approximately 1,500 feet southerly of the station, as contended by the defendant, rather than taking other estimates, all of which would place it further south.

The train movements resulting in the accident were occasioned by the fact that a special freight en route from Worcester to Portland and drawn by two locomotives had to be divided because of knuckle trouble near Exeter. The forepart of the train, forty-three cars, was drawn by the second engine into Rockingham, where it arrived shortly before 6 o'clock and pulled onto the passing siding easterly of the east-bound track. This portion of the freight had no caboose. The northerly switch of the passing siding was about 800 feet south of the station, and the engine took position far enough south of the switch to permit the passage of trains on the east-bound track. The engine and attached freight cars held this position until after the accident.

After repairs were made, the rear portion of the freight, forty-six cars and the caboose, was drawn by the leading locomotive into Rockingham, where they arrived on the east-bound track at half past 6. Since an east-bound passenger express was following, the second portion of the freight was drawn north until the caboose cleared a cross-over whose east-bound switch was something more than 600 feet southerly of the station. The cars were then backed by way of the cross-over onto the west-bound track, and the east-bound express went through.

By this time a west-bound express (No. 80) was ready to pass through. In order to clear the track, the freight cars were drawn forward through the cross-over and onto the east-bound track. The switches having been reset for main-line clearance, the conductor of the freight gave signal for the express to move southerly on the west-bound track, and it could be found that immediately after he gave that signal he gave another for the freight section to back southerly on the east-bound track so far as to clear the northerly switch on the passing siding, permitting the two locomotives to be coupled and the two portions of the freight rejoined. The simultaneous movements of the express and the freight cars in the same direction on the main-line tracks began at approximately a quarter of 7.

A few minutes before that the deceased, who had been working at the station handling baggage, mail, and express, though not as the defendant's employee, had finished for the day and had started to walk along the defendant's right of way towards his home at Newfields. The plaintiff Florence Smith had walked up from Newfields to meet him and go back with him, and it could be found from the evidence that she actually met him at a point 1,100 feet south of the station. The evidence also warrants the finding of the further facts now to be related.

As Miss Smith came northerly to the meeting place, she observed the freight cars on the siding and the second portion of the freight on the west-bound track. She also saw the latter pulling northward onto the east-bound track. Upon meeting Johnson, she turned and walked sdutherly with him, his arm about her waist, along the shoulder of the westbound track. While so walking, they heard a whistle behind them, turned, and saw the headlight of express No. 80. Due to the condition of the shoulder ahead of them, the east-bound track appeared to be a safer place un. der the circumstances. Accordingly, they crossed diagonally to the east-bound track, looking again to the north and seeing only the headlight of the express, and then proceeded southerly between the rails of the east-bound track.

The caboose had two or more rear lights, but Miss Smith did not see them or the cars, and she was not particularly looking for any movement on the east-bound track from the north. If she or Johnson had seen the caboose lights at the time they entered the east-bound track, it would have been at a distance of about 500 feet, and at that moment the backing movement would not have brought the freight cars more than 200 feet in their southerly course, making it difficult to perceive that their direction had been reversed. Both could be found not to have heard any sound from the freight unless it was its whistle rather than that of the express that they heard. Miss Smith in fact inferred at the time that she heard the express whistle. As the express overtook Johnson and Miss Smith, the fireman, knowing their danger and seeing that they were ignorant of it, shouted and waved from the cab of the express engine. The caboose was then about 180 feet from the pedestrians. Miss Smith did not hear what was shouted, but supposed it to be a friendly greeting. Johnson waved back. They proceeded walking, and shortly after the express engine passed they were struck by the rear of the caboose.

I. For many years prior to the accident the defendant's right of way had been commonly used by pedestrians passing in both directions between Rockingham and Newhelds, and it could be found that the defendant ought to have anticipated the presence of pedestrians at this time. Under these circumstances, the initiation of a simultaneous movement in the same direction on both tracks without precautions for their protection might be found to be negligent.

A rule of the defendant, and custom and practice, might be found to require that a trainman must take a conspicuous position on the front of the leading car (in this case the rear of the caboose). No trainman was so stationed, but such a trainman, if present and standing on the step of the caboose, could have reached for an air-brake lever, moved it a few inches, and in about two seconds the brakes would have been set throughout the length of the train. The cars would then have stopped within the distance of 40 to 60 feet.

It could be found also that, prior to the moment when the express engine passed the plaintiffs, the latter had been in the east-bound track, or going towards it, plainly illuminated by the express headlight, for a period of more than twenty seconds, during which time, it would be reasonable to conclude, a vigilant trainman on the rear of the caboose would have seen them and taken precautions to stop the freight. He could have taken action to bring it to a stop before it reached the point at which the fireman tried to warn the plaintiffs. Moreover, after the moment of the warning that failed to register, the freight cars (at 12 miles per hour) traveled 270 feet and the pedestrians 90 feet (4 miles per hour) before the point of impact was reached. That further progress required fifteen seconds, in which time there was ample further opportunity to avoid the accident.

This is not, therefore, a case like Goy v. Director General, 79 N. H. 512, 111 A. 855, where there was no evidence that a lookout on the rear of the caboose would or could have prevented the accident. It is not controlled by Ellsmore v. Director General, 80 N. H. 100, 114 A. 25, for here there is some evidence of a custom of pedestrians to walk between the rails in a direction contrary to the usual movement of traffic on those rails, a custom of which the defendant might be found to have notice. It might further be noted that we are dealing here with a case of customary use by pedestrians, not (as in Garland v. Railroad, 76 N. H. 556, 567, 86 A. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924) with a chance or casual trespass neither known to the employee at fault nor anticipatable by the defendant.

The presiding Justice told the Jury that it was unnecessary to distinguish between duties owed by the defendant under the circumstances to...