Tyler v. Concord & M. R. R.
| Decision Date | 26 July 1895 |
| Citation | 68 N.H. 331,44 A. 524 |
| Parties | TYLER v. CONCORD & M. R. R. |
| Court | New Hampshire Supreme Court |
Exceptions from Hillsboro county.
Action on the case by Lydia H. Tyler, administratrix, against the Concord & Montreal Railroad, for negligently causing the death of William H. Tyler, the plaintiff's intestate, by running upon him with a locomotive at a grade crossing in Manchester. Trial by jury. Verdict for defendant Plaintiff excepts. Exceptions sustained.
The plaintiff's evidence tended to prove the following facts; Tyler was 75 years old, somewhat feeble, and very deaf. About 5 o'clock in the afternoon of January 18, 1892, he left the shop where he was employed for his home. He passed over a canal bridge immediately west of the crossing as a train was approaching from the station to the south, and walked towards the tracks. Some boys standing by hooted at Tyler, and one or more of them ran up to him, and pulled his coattails. Tyler turned slightly, raised his cane, but did not strike, and continued across the tracks. The boys then started forward, and caught him, as if to pull him back; but he struggled with them, broke away, stepped between the rails of the easterly track, was struck by the locomotive, and injured. According to the defendant's evidence only two boys were present, and there was no hooting, nor pulling at Tyler's coat, except for the purpose of warning him of the approaching train. Smith, one of the boys, grasped him by the arm, and told him the train was coming. Tyler pulled away, and stepped upon the track in front of the locomotive. In the cross-examination of Smith, the plaintiff proposed to ask him if other boys, on previous occasions, had interfered with Tyler at this crossing, and had bothered him by pulling his coattails, and by talking to him. This evidence was excluded, and the plaintiff excepted. The plaintiff also offered to show that at the same hour on the five days previous to the accident boys had annoyed Tyler at the same crossing, and that he had attempted to use his cane upon them. The evidence was excluded, and the plaintiff excepted.
Sulloway & Topliff, for plaintiff.
Prank S. Streeter and Joseph W. Fellows, for defendant.
The evidence that boys about the crossing interfered with Tyler, told him that a train was coming, and endeavored to restrain him from going upon the tracks, was offered by the defendant for the purpose of showing that he was seasonably warned of the impending danger....
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