Smith v. Boston & M. R. R.

• Decision Date: 16 March 1900
• Citation: 70 N.H. 53,47 A. 290
• Parties: SMITH v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

47 A. 290

70 N.H. 53

SMITH

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

March 16, 1900.

Exceptions from Belknap county.

Action by Joseph F. Smith, administrator, against the Boston & Maine Railroad. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants bring exceptions. Exceptions overruled.

Case for causing the death of John L. Cate by negligence, at a highway grade crossing known as the "Waukewan Crossing," situated about half a mile northerly of the Meredith station. Trial by jury. A view of the crossing was taken. The railroad approaches it from a southerly direction, on a curve the center of which is on the same side of the track as the highway. The angle between the track and highway is acute, and the surface of the land is considerably higher than the surfaces of the roadbeds. There is a dwelling house upon this ridge about 300 feet southerly of the crossing. There is a snow fence, 7 or 8 feet high, along the easterly side of the railroad, both northerly and southerly of the crossing; the opening in it for the highway being 15 to 18 feet wide. The end of the fence on the southerly side of the crossing is about 30 feet from the nearest rail, and the fence extends southerly on the ridge 300 feet or more. The ridge, the fence, and the house obstruct the view of the railroad more or less. The evidence relating to the extent of the obstruction was conflicting. Several witnesses testified that one could not see cars passing on the railroad until he got right on the track. The defendants introduced evidence of experiments made on a moonlight, but cloudy, evening, during the trial, which tended to show that light from the headlight and the firebox of a locomotive, and from the cars, can be seen above the fence, or through cracks in it, the most, if not all, of the way from the dwelling house to the crossing, and that, when within 35 feet of the track, one can see, by the end of the fence, the headlight at a point 166 feet southerly of the crossing, and when within 15 feet of the track at a point 633 feet distant There is also a highway grade crossing Immediately south of the Meredith station. Cate was 46 years old, and a man of good habits. He always lived on a farm situated about three miles from Meredith village. The Waukewan crossiug was on the highway between the farm and the village. He passed over this highway frequently. He considered the crossing dangerous, and when about to pass it always checked the speed of his horse to a walk, and looked and listened for a train. About half past 11 o'clock, on the night of October 7, 1898, as Cate was driving from the village towards his home in a covered buggy drawn by a steady horse, not afraid of the cars, he was struck by the defendant's express passenger train going north, and was killed. The night was cloudy, misty, and dark. The evidence tended to show that such a train had passed through Meredith at about the same hour, when on time, for 25 years; that it was nearly on time this night; that it did not stop at the station unless signaled to do so; that it did not stop there this night; and that it was going at its usual speed at that point (about 25 miles an hour) at the time of the collision. The plaintiff called 15 witnesses, who testified, in substance, that they were in situations where they could hear locomotive whistles sounded at each of the crossings, and that they did not hear a whistle for the Waukewan crossing, but did hear one for the station crossing. The engineer of the train testified that he sounded the usual crossing whistle 80 rods from the Waukewan crossing, and then rung the bell until he saw the head and forward part of Cate's horse come from behind the fence, right out of the darkness, 3 or 4 rods ahead of him, when he set the air brake at the emergency point. Other trainmen and other employés of the defendants (nine in all) and two other persons testified that they heard this whistle. The defendants' motion, at the close of the evidence, that a verdict be directed in their favor, was denied, subject to exception.

The defendants requested the following instruction to the jury: "It was the duty of Cate, before attempting to cross the track, to look and listen for approaching trains; and it was his duty to do this when sufficiently near the track that from failure to see or hear a train at that time, he might fairly assume that no train would reach the immediate vicinity of the crossing before he had passed it, yet not too near to enable him to stop his horse, and avert a collision with any train whose appearance he might discover. If you find that he failed to look and listen at the proper time, as here explained, you will return a verdict for the defendants." They also requested an instruction substituting the words "look or listen" for "look and listen" in the above. The court substituted the words "take such precautions to learn of the approach of trains as men of ordinary prudence would take in like circumstances" for "look and listen for approaching trains" in the first sentence, and "look and listen" in the last sentence, and gave the instruction as so modified, and the defendants excepted. The defendants also requested the following instruction: "[The] evidence [which] has been submitted here, that it has been the constant habit of Cate for many years to stop or check his horse on approaching the Waukewan crossing, and look and listen for approaching trains, [is no proof that he was a cautious or careful man, and the law does not permit you to so construe it] The reason for admitting such evidence in this class of cases is that a man is apt to do by force of habit that which it is his fixed and constant practice to do under the same circumstances. You are to consider Cate's habit of looking and listening at this crossing only as having some tendency to show that he checked his horse, looked, and listened on the night of the accident, as usual. Upon all the evidence, whether he did or not act that night according to his habit is for you to say." The instruction was given without the words included in brackets, and the defendants excepted.

The jury found, in answer to special questions submitted at the defendants' request, (1) that the whistle was not sounded at the Waukewan crossing; (2) that Cate did not have knowledge of the approach of the train at a sufficient distance before reaching the crossing to enable him, by the exercise of ordinary care, to prevent the collision; (3) that his want of knowledge on this point was due to the defendants' fault; and (4) that a man of ordinary prudence and judgment, possessing Cate's knowledge of the crossing and its surroundings, and such knowledge as he had or ought to have had of the approach of the train, would have understood he could pass in safety at the time Cate drove upon the track. A general verdict in favor of the plaintiff having been returned, the defendants moved to set it aside and for a new trial.

Frank M. Beckford and Stone & Shannon, for plaintiff.

Jewett & Plummer and Frank S. Streeter, for defendants.

CHASE, J. Cate's uniform habit of slackening the speed of his horse to a walk at the Waukewan crossing, and looking and listening for the approach of a train before attempting to pass the crossing, tended to show that he did so on his fatal trip. It was substantial evidence of the exercise of care on that occasion. Davis v. Railroad, 68 N. H. 247, 248, 44 Atl. 388, and authorities cited.

But it is said that this evidence proved too much to be of benefit to the plaintiff; that, if Cate did exercise care to that extent, he must have...