Smith v. Boston & M. R. R.

• Decision Date: 03 May 1932
• Citation: 160 A. 480
• Court: New Hampshire Supreme Court
• Parties: SMITH v. BOSTON & M. R. R.

160 A. 480

SMITH

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

May 3, 1932.

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

Case by Michael Smith against the Boston & Maine Railroad, transferred on defendant's exceptions after verdict for plaintiff.

Judgment for plaintiff.

Case for personal injury caused by a collision between the defendant's passenger train and the plaintiff's motortruck, operated by him, at a private crossing at grade in Laconia. Trial by jury, and verdict for the plaintiff. Transferred by Burque, J., upon the defendant's exceptions to the admission and exclusion of evidence, to the denial of motions for a nonsuit and a directed verdict, to the instructions given, and to a refusal to charge as requested. The facts appear in the opinion.

Tilton & Tilton, of Laconia, for plaintiff.

Jewett & Jewett, of Laconia, for defendant.

SNOW, J.

The track of the defendant's White Mountain division runs north and south through Laconia, and at the point in question cuts off a tract of shore property to the west thereof on which are situate the Dow coal sheds, oil storage tanks, junk sheds, etc. The severed tract is accessible only by a private way leading westerly from Messer street across the railroad at the Dow crossing, so called. The defendant's track coming from the south curves slightly to the east along and below a steep embankment some ten or twelve feet high; the crossing being approximately at the center of the curve. The way lending from Messer street proceeds westerly on the higher level about 150 feet between buildings on either side, and then, curving sharply to the right, drops down the side of the embankment, and approaches the crossing at an angle of about forty-five degrees. It then curves to the left over the main track and across two side tracks extending northerly, and a spur track extending southerly. The first or nearest side track leaves the main line at a point one hundred twenty feet south of the crossing, and the second branches from the first at a point twenty feet south of the way. The spur runs south from the second siding, and crosses the way about twenty feet west of the latter track. The driver of a vehicle arriving from the east necessarily approaches the track on a descending grade with his back turned diagonally to the south. His view of an engine approaching from the south, as well as the corresponding view of the engineer, is obstructed by the embankment which is parallel to the tracks and about twenty-five feet easterly of the easterly rail. The private way is about fifteen feet in width, and somewhat difficult of negotiation for a truck, because of the grade and curves. The crossing, to the knowledge of the defendant, had been for many years in constant use during business hours, and was unprotected by any device, signal, or rule. To the knowledge of both parties, the crossing was dangerous, as respects vehicles approaching from the east.

The plaintiff, sixty-four years of age, was experienced in driving a truck. He had been engaged in making delivery of coal from the Dow sheds for somewhat more than a year preceding the accident, passing over the tracks three or four times daily, and had had earlier familiarity with the crossing. He knew there were regular trains, but did not know the schedule. He was on his way to the sheds in the midafternoon of an October day when the accident occurred. He testified that it was his custom to slow down and stop before pitching down the grade, to put his gear into low, go down close to the crossing, stop there and look south, then north, and thereupon go ahead; that on the day of the accident, following this custom, he brought his truck to a stop with the front end of his truck at a distance which he estimated to be twelve or fifteen feet from the track or a little closer; that he saw no train coming and heard nothing; that he then stepped on the gas and '"hurried up to get across"; that after he started to cross he did not look either way again; that he had to keep his eyes on the track to see where he was going; that he did not believe he could have steered the truck if he had kept...