Williams v. Boston & M. R. R.

• Decision Date: 02 March 1926
• Citation: 132 A. 682
• Parties: WILLIAMS v. BOSTON & M. R. R. (three cases). COLLISHAW v. SAME.
• Court: New Hampshire Supreme Court

132 A. 682

WILLIAMS

v. BOSTON & M. R. R. (three cases).

COLLISHAW

v. SAME.

Supreme Court of New Hampshire. Rockingham.

March 2, 1926.

Transferred from Superior Court, Rockingham County; Allen, Judge.

Separate actions by Edwin Collishaw, by Lora E. Williams, by Charles E. Williams, executor, and by Lora E. Williams, administratrix, against the Boston & Maine Railroad, which were tried together. Verdicts for defendant in actions for death of Harry C. Williams and injury sustained by plaintiff Edwin Collishaw, and the plaintiffs except. Verdicts for plaintiffs in other suits, and defendant excepts. Cases transferred. Judgment on the verdicts.

Actions to recover for personal injuries and death caused by a collision between a passenger train of the defendant and an automobile operated by the decedent, Harry C. Williams, upon a grade crossing near Alton, November 12, 1922. At the time of the accident the plaintiff Edwin Collishaw was sitting beside Williams in the front seat of the car. The plaintiff Lora Williams and her child, Lois E. Williams (the plaintiff's intestate), were occupying the rear seat.

The cases were tried together by jury, with verdicts for the defendant in the actions for the death of Harry C. Williams and for the injuries sustained by Collishaw. There were verdicts for the plaintiffs in the other suits. In the lastmentioned cases the defendant excepted to the denial of its motions for a nonsuit and a directed verdict; in the cases which resulted in verdicts for the defendant, the plaintiffs excepted to the refusal of the court to grant certain requests for instructions and to the argument of the defendant's counsel.

Other facts are stated in the opinion.

William H. Sleeper, of Exeter, for plaintiffs.

George T. Hughes, of Dover, for defendant.

MARBLE, J. No exception was taken to that portion of the charge relating to the conduct of the plaintiff Lora E. Williams. She had "intrusted her safety" to her husband, who was driving, and it does not conclusively appear that she was not justified in so doing. Laws 1923, c. 13. The plaintiffs intestate was but a few months old, and therefore incapable of exercising any care whatever. Carney v. Railway, 57 A. 218, 72 N. H. 364, 368, and cases cited. The negligence of the driver could not be imputed to either of them. Noyes v. Boscawen, 10 A. 690, 64 N. H. 361, 10 Am. St. Rep. 410; Warren v. Railway, 47 A. 735, 70 N. H. 352, 360; Collins v. Hustis, 111 A. 286, 79 N. H. 446, 449; Bowley v. Duca, 120 A. 74, 80 N. H. 548, 549. Consequently the only question presented by the defendant's motions is whether or not there was sufficient evidence to support a finding of negligence on the part of the defendant contributing to the accident.

The grounds relied upon comprise (1) failure to give the statutory signals, (2) excessive speed, (3) failure to provide an automatic gong or other means of notice of the approach of trains, and (4) failure of the fireman or engineer to keep a proper lookout. Since no motion was made to withdraw any of these issues from the jury, if the evidence warranted the submission of one of them, consideration of the others is unnecessary.

At the time of the accident the train was approaching the Alton Station, which was located a half mile west of Durgin's crossing, where the collision occurred. The automobile was proceeding on the highway from New Durham to Alton.

Collishaw testified that as the car drew near the crossing he was listening for a whistle with "all the attention that was possible for a man to give," and that he did not hear the statutory signal; that he looked up the track, saw no train in sight, and said to Williams, "Clear line"; that his attention was first called to the train by a "sharp blast of the whistle;" and that the engine was then "right on" them.

Collishaw and Williams were both on the active lookout for a train. While there is no direct testimony as to what Williams heard, it is a fair inference from his conduct and his failure to reply when Collishaw called out, "Clear line," that he did not hear any whistle.

Mrs. Williams did not recall hearing the whistle, and a young woman on horseback on the opposite side of the crossing failed to hear it. Neither this witness nor Mrs. Williams, however, was listening for the approach of the train. The same was true of another witness, who was working in a shed nearby.

The engineer testified that he gave the statutory signal at the whistling post and did not whistle again; that he was practically on the crossing when he first saw the plaintiffs' car and that he then had no time to whistle. He was corroborated by the conductor and trainmen, who testified that the regular crossing signal was given.

Sixteen witnesses in addition to those already mentioned testified that they heard a whistle. Much of this evidence is not inconsistent with Collishaw's testimony, and some of it tends strongly to support his assertion that no whistle was sounded until the danger of collision was imminent, and that the signal then* given was a single sharp blast.

A man driving a short distance behind the plaintiffs' automobile heard "just one" blast of the whistle followed by the sound of the collision. He stated that the time between the whistle and the crash was very short.

Two of the passengers on the train were called as witnesses. One stated that he heard "the usual whistle that they whistle at all crossings." The other testified:

"The first that attracted my attention was a blast from the whistle. * * * It aroused me in some way; whether it was the regular whistle or a shorter blast I don't know, but it was near that crossing."

Of the eight witnesses who lived near the scene of the accident only one testified positively to hearing two long and two short whistles. This witness was sick in bed at the time and could state only as an expression of opinion that this signal was given at the whistling post Five of these witnesses did not sec the train at all. One of them stated that the train sometimes whistled "down around the crossing." To the question, "Sometimes it whistles in fairly near the crossing, doesn't it?" he answered, "Yes."

The accident occurred on Sunday, and the train in question was the regular Sunday paper train. Although many of the witnesses were waiting for...