Waldron v. Boston & M. R. R.

• Decision Date: 06 May 1902
• Citation: 52 A. 443,71 N.H. 362
• Parties: WALDRON v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

52 A. 443

71 N.H. 362

WALDRON

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

May 6, 1902.

Exceptions from superior court, Belknap county; Peaslee, Judge.

Action by Maria A. Waldron, as administratrix, against the Boston & Maine Railroad. Verdict for defendant, and plaintiff excepts. Case transferred from the superior court. Exceptions overruled.

About 1,900 feet above the crossing the track comes around a curve at a point called the "Mountain." From this point the grade is descending, and the trains are accustomed to coast past the crossing. The track curves to the east, and on that side of it, just above the crossing, there are thick bushes. A person standing midway between the rails at the crossing can see up the track 700 feet; 4 feet easterly from the east rail one can see 568 feet; 9 feet from the rail, 484 feet; 14 feet from the rail (the easterly edge of the planking), 400 feet; and 28 feet from the middle of the track, 214 feet. There is a sharp rise coming up from an ice house situated easterly of the track. The plaintiff's evidence tended to prove the following facts: The decedent was 49 years old, in good health, and in full possession of his faculties. He was a board sawyer by trade, and about a year before the accident purchased a mill near the scene of the accident. During that year he had occasion to use this crossing frequently, and was familiar with it and its surroundings. He resided west of the track from June 1, 1901, and was accustomed to go across it to get ice from the house on the east side two or three times a week. He went there on the day of the accident shortly after dinner, loaded the ice upon a wheelbarrow, and started to wheel it up the rise toward the crossing. The White Mountain express was eight minutes late. As it came around the mountain, it was running from 25 to 35 miles an hour. The engine was not working steam, and both the engineer and fireman were on the lookout. By reason of his position on the outside of the curve, the engineer could not see the crossing as they approached it the fireman could see it, and testified that he first observed the deceased just as he was coming upon the easterly edge of the planking, and as soon as his presence was disclosed by the engine rounding the curve at a distance from the crossing estimated at from 175 to 200 feet, and from that time kept an eye on him; that the whistle for Weir's station was given as they passed the mountain, and that the witness rang the bell from there on; that he supposed Waldron would stop before he reached the track, and for that reason did not at once signal the engineer; that Waldron did not look toward the train, or in any way show that he was conscious of its approach; that there was nothing unusual in his appearance; that the witness first thought there was a likelihood that Waldron would go upon the track when he was within 8 feet of it, and he then shouted "Whoa!" to the engineer; that the engineer was leaning out of his window, and did not hear the cry, and the witness repeated it, but it was then too late to avoid the accident. Eight witnesses testified that they were in positions where they heard the noise of the train, but heard no bell or whistle. At the close of the plaintiff's evidence a verdict was directed for the defendants, subject to exception.

Shannon & Young and E. A. & C. B. Hibbard, for plaintiff.

Jewett & Plummer and Frank S. Streeter, for defendants.

WALKER. J. The plaintiff cannot recover unless it appears that her intestate was at the time of his injury in the exercise of ordinary care, or was not himself guilty of negligence which alone, or in conjunction with the defendant's negligence, was the proximate cause of his injury (Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159); and the plaintiff is bound to prove this proposition by competent evidence. The fact alone that the injury occurred is not sufficient evidence of his care or freedom from negligence contributing to his injury. When there is no direct evidence bearing upon the question of the care exercised by the deceased, and all that is known in reference to it is the fact that he was killed while attempting to cross a railroad track in front of an approaching train, the natural or instinctive disposition of men in general to avoid fatal injuries under such circumstances has been held to be evidence tending to show that the deceased did not carelessly and without due regard for his own safety expose himself to the inevitable fatality resulting from a collision with a swiftly moving locomotive. Huntress v. Railroad, 66 N. H. 185, 34 Atl. 154, 49 Am. St. Rep. 600. If the great majority of men, when approaching a railroad crossing, take some precautions against being injured by passing trains,—which precautions are deemed reasonable,—and if, in the absence of direct evidence, this general custom of mankind may become evidence that the deceased in a given ease used similar reasonable precautions to avoid danger, the fact remains that some men under similar circumstances are careless and negligent to the extent even of hazarding their lives upon the performance of foolhardy feats. It follows, therefore, that when it is known what the deceased did or omitted to do for his protection, evidence derived from the instinct, which most men possess, of securing their own safety in crossing a railroad track, could not be used to prove that he used the same degree or kind of care. Its only office would be to furnish a test by which to determine the reasonableness of his known acts; not to contradict them or minimize their...