Stocker v. Boston & M. R. R.

• Decision Date: 04 September 1928
• Citation: Stocker v. Boston & M. R. R., 143 A. 68 (N.H. 1928)
• Court: New Hampshire Supreme Court
• Parties: STOCKER v. BOSTON & M. R. R. (two cases).

143 A. 68

STOCKER

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

Supreme Court of New Hampshire. Hillsborough.

Sept. 4, 1928.

Transferred from Superior Court, Hillsborough County; Matthews, Judge.

Separate actions by Lena M. Stocker against the Boston & Maine Railroad and by George F. Stocker against defendant named. Verdicts by jury for plaintiff. On exceptions to denial of motions for directed verdicts and on exceptions to evidence, argument denial of requests for instructions, and to the charge, case transferred. New trial.

Case for negligence. Verdict by jury for plaintiffs. The plaintiff Lena, for convenience called the plaintiff, was injured at a railroad crossing at Massabesic Station in Manchester while driving an automobile which was struck by a train of the defendant. The crossing, although private, was maintained by the defendant as though it were public, and the public used it as such. The accident occurred on a Sunday afternoon in summer, at a time when "crowds of people" use the crossing. Ordinarily no trains passed over the crossing on Sundays, and the train involved was an extra freight, traveling at the time at a speed of from 30 to 35 miles an hour. There was no special protection at the crossing by warning arrangements or gates. The train was going west, and the plaintiff south. Further facts are stated in the opinion.

Transferred by Matthews, J., on exceptions to the denial of motions for directed verdicts, and on exceptions set forth so far as material in the opinion, to evidence, argument, denial of requests for instructions, and to the charge.

Jones & Allen, of Boston, Mass., Charles M. Dale, of Portsmouth, and Tuttle, Wyman & Starr, of Manchester, for plaintiffs.

Hughes & Burns, of Dover, for defendant.

ALLEN, J. It is not a matter of law that the train's speed was inexcessive. While the crossing was private, the defendant maintained it as public. Thus holding it out, it might not say to travelers assuming and relying on it as public that its duties to them were to be otherwise measured. Considering the lack of special protection at the crossing, the usual extent and character of use of the crossing by the public on Sunday afternoons, and such limitations of visible notice of an approaching train as might be found, even assuming the statutory signals by whistle and bell were given, it might reasonably be said that the speed should have been reduced. If ordinarily an accident was not to be looked for under the conditions existing, it is not to be said that there was not enough chance for one traveling prudently to be struck by the train to call for a lower speed. And a very slight reduction of speed would have secured the plaintiff's safe passage of the crossing.

And, if the plaintiff's negligence be assumed, the last chance doctrine may serve to overcome its effect. The evidence would justify the following statement of circumstances material thereto: Without stopping her car, she approached the crossing at a speed of not over 5 miles an hour. She did not see the train until she was so near the track that she did not then have time to stop short of the crossing. And the train was then so near that she undertook to increase her speed and go over the crossing ahead of it. This final action of hers was not negligent, unless in manner of performance. When taken, it was her only chance of safety. Her negligence, if assumed, was in her prior inattention and consequent failure seasonably to learn of the train's approach. When the negligence is of such a character, although it may be continuing and logically causal, it is not a bar to recovery under the last chance doctrine. The law now is that, if the defendant is aware of the danger and of the plaintiff's ignorance or lack of appreciation of it, his superior knowledge makes him liable if he has by due care the last chance to avoid injury. Jones v. Railroad, 83 N. H. 73, 81, 139 A. 214, and cases cited.

The defendant's superior knowledge may be found. Its engineer testified that he saw the plaintiff's car stopped on the further side from him of a side track at a distance of some 12 or 15 feet from the main track crossing. But the evidence that the car was not stopped there, but was moving all the time in its approach to the crossing, warrants a finding that he saw it thus moving. He further testified that when he first saw the car and its occupants, he was at a point which other evidence fixes at about 180 feet from the crossing. While he also testified that the occupants were looking towards him, there was other evidence that they were not. They testified that they did not see the train until the car had crossed the side track and was within a few feet of the main track crossing, and this testimony gave the jury the right to say that the engineer saw the car in motion before it reached the side track, with no attention given by its driver to the train.

A speed of the train even of from 30 to 35 miles an hour is not so great that a trained observer such as an experienced engineer, with no disturbance of visibility and with no defective vision so far as the evidence shows, might not be found to see correctly the picture presented to him and watched by him of objects within less than 200 feet from him, including the object of a car moving at not over 5 miles an hour. If he could see the occupants of the car looking his way, as he says, he could as well see them looking the other way, as they say. His testimony that he saw them looking his way is evidence that he saw how they were looking, and, if in fact they were looking the other way, it may be found that he saw and was aware they were thus looking. And, if the car approached the crossing at an unlessened speed of not over 5 miles an hour, the difference between rest and motion at such a rate is so great that it may be found he saw and knew he saw a moving rather than stationary car all the time it was in his view. While "estimates of distance and speed * * * are largely speculative, may be. and often are, unreliable" (Johnson v. Director General, 81 N. H. 289, 291, 292, 125 A. 147, 149), the difference between rest and substantial motion of 7 or 8 feet a second may be found a matter of marked definement to one in the engineer's place.

It follows that a finding that the engineer had, and knew he had, superior knowledge might be made. He failed to apply the brakes until he had gone more than half the distance from his first view of the car, and in going this distance the train took at least two seconds. The car was struck after crossing the track at its rear end by the overhang of the locomotive. If the brakes had been applied a small fraction of a second sooner, there would have been no accident. It was for the jury to say if the engineer should have slackened the train's speed more promptly than he did.

The issue of special protection at the crossing was properly submitted. The defendant's acknowledgment that it maintained the crossing as...