Ware v. M. R. R., 3349.

• Decision Date: 02 March 1943
• Docket Number: No. 3349.,3349.
• Citation: 31 A.2d 58
• Parties: WARE v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

31 A.2d 58

WARE

v.BOSTON & M. R. R.

No. 3349.

Supreme Court of New Hampshire.

March 2, 1943.

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

Action on the case by Reita A. Ware, administratrix of the estate of Frederick J. Ware, deceased, against the Boston & Maine Railroad to recover for the death of Frederick J. Ware, deceased, as result of a collision between the deceased's truck and defendant's electric gasoline train. Verdict was for defendant, and case was transferred on plaintiff's exceptions.

New trial.

Case, to recover damages for the death of Frederick J. Ware, resulting from a collision between decedent's light truck and the defendant's electric gasoline train at a grade crossing approaching the station at Claremont Junction. Trial by jury resulting in a verdict for the defendant.

During the trial plaintiff took certain exceptions to the admission and exclusion of evidence, to a statement made by defendant's counsel during the course of plaintiff's counsel's argument, to withdrawal of certain issues from the jury and to the Court's refusal to insert as part of the reserved case, defendant's regulation as to the speed of its trains at the crossing adopted and enforced since the accident. The exceptions, together with pertinent evidence thereto, appear in the opinion.

Reserved and transferred by Johnston, J.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robt. P. Booth, of Manchester, orally), for plaintiff.

McLane, Davis & Carleton, of Manchester (Robert P. Bingham, of Manchester, orally), for defendant.

BURQUE, Justice.

The first exception relates to evidence given by one Sisk. He testified that he was sitting in his car on the south side of the crossing, facing north. He saw the decedent approach from the north, at some distance from the crossing. He was asked if he could determine the speed of the car. His answers were that he could not establish it in miles per hour. On the cross-examination he was asked if, in his deposition taken by the plaintiff, he had, in answer to the question: “When he [Ware] was approaching you, could you tell whether he was going fast, medium or slow”, said, “Well, the only thing I could say, he was going too fast for the road conditions that night,” and the witness replied: “That's right.” When it became apparent the defendant was about to use the deposition, and prior to the above inquiry, plaintiff objected, and the court allowed the inquiry for the purpose of contradicting the witness. Whether the evidence is contradictory and admissible for that purpose only need not be passed upon, for the witness after answering the above question, was asked further: “You still say that.” A. “Yes, sir.” This made it direct testimony.

[1] The evidence is proper. The witness had himself been driving that night (though it does not appear how far); the road was icy and slippery; it was snowing; he saw the decedent's car skid and slide, and observed after the accident that the skid or slide marks extended some 30 to 40 feet north of the crossing; (the evidence is undisputed they extended 32 feet). Even though this may be said to be opinion evidence, the witness was amply qualified and was properly allowed to testify as he did. Simoneau v. Keene Electric Railway, 78 N.H. 363, 364, 100 A. 551, L.R.A.1918A, 620; Weiss v. Wasserman, 91 N.H. 164, 166, 15 A.2d 861.

B. The plaintiff offered to prove that at a crossing next below the one in question and on this same line it was the practice of the railroad to stop the train and have a trainman get out and flag the crossing. It does not appear how far away that crossing is, nor how comparable the conditions are to those in the instant case. Defendant's attorney stated some of the conditions existing at the other crossing referred to which were “not of sufficient analogy and commonness” to make them comparable to the ones existing at the crossing involved. Plaintiff was not in a position to either agree to or dispute the statement, and admitted he had no knowledge of the facts stated therein. The offer was too general and consequently was properly denied.

“Reasonable need of special protection is to be determined by the special and unusual dangers of the crossing considered. It follows that what is needed at one crossing has no relevant bearing on what is needed at another. The details of each situation are too numerous to admit of fair comparison, and it may not be said that, because there is special protection at one crossing, there should be at another,...