Stone v. Boston & M. R. R.

• Decision Date: 30 June 1903
• Citation: 55 A. 359,72 N.H. 206
• Parties: STONE v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

55 A. 359

72 N.H. 206

STONE

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

June 30, 1903.

Exceptions from Superior Court.

Action by Edwin Stone, administrator of Fred Stone, deceased, against the Boston & Maine Railroad for injuries at a railroad crossing. Verdict for plaintiff, and defendant excepts. Transferred from the superior court. Affirmed.

The railroad curves toward the east as it aproaches Winnisquam crossing from the north at a descending grade. From a point about 200 feet north of the crossing to a point about 750 feet north of it there is a bank on the easterly side of the track, which varies in height above the rails from 3 1/4 feet at the former point to 25 feet at the latter. The highway approaches the railroad from the east at a descending grade. A person standing in the middle of the traveled part of the highway 25 feet east of the easterly rail can see a locomotive at a point 500 feet north of the crossing. From a point in the highway 12 feet east of the easterly rail, a locomotive is visible when 579 feet north of the crossing. The accident occurred about an hour after sunset. The sky was somewhat cloudy. The ground was frozen. The train which struck Stone was the south-bound Montreal express, known as "No. 184," and at the time of the accident was running a few minutes behind its schedule. The plaintiff's evidence tended to prove the following facts: Stone was 34 years old, in good health, and possessed all his faculties. For three weeks immediately preceding his death he had been employed as a farm laborer by Martha Bowers, of Sanbornton, for whom he had worked on a former occasion. He frequently drove to Laconia, and on each trip passed over the Winnisquam crossing. At the time of the accident he was driving a safe horse attached to a hayrack containing an empty barrel and a tin washboiler. As he drove upon the crossing from the east, he was struck by the locomotive, and received injuries which caused his death. A witness for the plaintiff testified that he was listening for the whistle, and that it was not sounded. The defendants' evidence tended to prove the following facts: A traveling engineer of the defendants, who occupied the fireman's seat in the cab of the locomotive, first observed Stone when the team was about two rods from the crossing, and the train was about 300 feet from it. Stone was apparently looking straight ahead, and did not turn or seem to pay any attention to the train. The horse was trotting at a rate of about five miles an hour. In response to the question whether Stone could have then stopped and avoided the collision, the witness replied that he did not know. It was admitted that no danger signal was given after Stone was first observed from the locomotive. The defendants' evidence also tended to prove that the crossing whistle was regularly sounded, that the headlight was burning, that the speed of the train was about 40 miles an hour, and that all means were employed to stop the train after Stone was observed in dangerous proximity to the track. The widow of the deced dent was asked on direct examination if "there had been hard times in Laconia." An exception was claimed, but before it could be fully stated the witness answered in the affirmative. The court thereupon excluded the question, and said to the jury: "It will make no difference to you whether the times are easy or otherwise." Subject to the defendant's exception, the decedent's widow was permitted to testify that she rode over the Winnisquam crossing with her husband in the autumn of 1901; that he then drove slowly, listened, and said that the crossing was dangerous; and that he made the same remark at the same place at other times. Martha Bowers was permitted to give similar testimony in corroboration, subject to exception. Subject to exception on the ground that the witness was not qualified to give an opinion, George Plummer, who was a passenger on the day of the accident, and had traveled by the same train five or six times in three years, testified that the speed of the train "might have been sixty miles an hour." Subject to exception, a watch alleged to have been carried by the decedent at the time of the accident, was produced and shown to the' jury for the purpose of showing the time at which it stopped. Three witnesses, who were passengers on the train, and who were not listening, testified that they did not hear a crossing whistle, subject to exception. Subject to the defendants' exception, Daniels, a witness called by the plaintiff, testified that many times before and since the death of Stone he had timed the speed of train No. 184 between stations a few miles south of Winnisquam crossing, and that a distance of three miles was frequently covered in 8% or 3% minutes. One witness testified, subject to exception, that a few days before the trial he made observations as to the speed of train No. 184, and...