Tucker v. Boston & M. R. R.

• Decision Date: 03 January 1905
• Citation: 73 N.H. 132,59 A. 943
• Parties: TUCKER v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

59 A. 943

73 N.H. 132

TUCKER v.BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

Jan. 3, 1905.

Transferred from Superior Court; Stone, Judge.

Action by William H. Tucker, administrator, against the Boston & Maine Railroad. Defendants' motion for nonsuit denied, subject to exception. Transferred from the superior court Exceptions overruled.

Case for negligence. Trial by jury, and verdict for the plaintiff. The defendants' motion for a nonsuit was denied, subject to exception. Transferred from the March term, 1904, of the superior court by Stone, J. The plaintiff's evidence tended to prove the following facts: About 5 o'clock on the afternoon of January 29, 1903, the plaintiff's intestate while driving over a grade crossing in Andover, was struck by a southerly bound train and fatally injured. He was riding in a sleigh drawn by a safe horse, and was returning from Franklin to his home in Andover. He was observed when about 150 feet distant from the crossing, and was not again seen until just as the train struck him. The afternoon was quite dark, and the weather was foggy and misty. The locomotive whistle was duly sounded. There was no evidence that the bell was rung. Two witnesses who heard the whistle testified that they did not hear the bell, although they were in a position to do so if it had been rung. On cross-examination both declined to testify that the bell was not rung. Neither of the witnesses noticed the headlight, and there was no other evidence concerning it. The train was somewhat late, and was running at a high speed, but whether faster than the usual rate did not appear. One approaching the crossing from the direction of Franklin cannot see the track until he is within about 30 feet of it, at which point a view can be had up the track for 30 or 40 rods; and when one is within 10 or 15 feet of the crossing the track is visible in the direction of Andover for a distance of 80 rods. There is another grade crossing about half a mile nearer Andover than that where the accident occurred. The track is on a descending grade all the way from Andover to Franklin. Evidence that it was the habit and custom of the deceased to stop, look, and listen for trains when approaching the crossing where the accident occurred, with which he was perfectly familiar, was admitted, subject to the defendants' exception.

Oscar L. Young and Shannon & Tilton, for plaintiff.

Jewett & Plummer and George W. Stone, for defendants.

PARSONS, C. J. The...