Minot v. Railroad , 74 N.H. 230 ( 1907 )

The defendants, in their argument in support of the exception to the denial of their motion for an order directing a verdict in their favor, place much reliance upon the character and weight, as testimony, of the orders, train sheets, and records put in evidence by them, relating to the movements of the locomotive of the Jefferson Hill train. They say that this testimony demonstrates the falsity of the plaintiff's testimony relating to the customary movements and location of the train during the afternoon hours, and consequently the falsity of the proposition that the decedent was exercising ordinary care in attempting to cross the tracks as she did. In their brief, they freely admit that "if . . . the testimony of the plaintiff's witnesses were opposed merely by the testimony of the defendants' trainmen, the conflict would be for the jury to determine"; that it would then be "the common case of one set of men contradicting another, and, so far as the court could see, either might be right, and reasonable minds could conceivably differ as to which was right." In the consideration which they have given to these orders, etc., they seem to have overlooked the fact that the orders, etc., specifically relate to the locomotive alone. Assuming, for the purpose of the argument, that this testimony, by reason of its character, inherently and conclusively implies verity, it proves only that the locomotive moved about as shown by it. It does not prove that the combination car, alone or in connection with another car, was taken with the locomotive while performing outside service, or that it did not customarily stand upon the branch siding during the afternoons. It does not prove that the locomotive was used in shifting cars in the yard at Cherry Mountain after its arrival there. Indeed, the testimony introduced by the defendants themselves tended to prove that the cars and the locomotive, one or all of them, so frequently stood upon this siding during portions of the afternoons that it was doubtful whether it could not properly be said that they customarily stood there. The defendants were at liberty to argue to the jury that they had shown by conclusive testimony that the plaintiff's witnesses were not entitled to credit; but the jury were not obliged to find, because the witnesses were in error as to some particulars, that they were false or in error as to all. They were at liberty to find, if upon a consideration of all the testimony such appeared to them to be the fact, that the plaintiff's witnesses were mistaken or misrecollected as to some of the movements of the locomotive, but were entitled to credit as to other matters. They might reasonably believe that there would be more or less unintentional errors in the testimony of witnesses — whether called by the one side or the other — given after the lapse of four years from the time when the transactions occurred as to which they testified. Furthermore, the question of the decedent's care did not necessarily depend upon the fact that the Jefferson Hill train, without change in its make-up, pulled onto the branch siding immediately after its passengers alighted, and stayed there during the remainder of the afternoon. If the train, with or without the additional passenger car, was frequently placed on the siding at some time during the afternoon and usually remained there after being so placed until four or five o'clock, a jury might reasonably find that the decedent, familiar with such custom, would not be wanting in due care if she assumed that the train which caused her death, having gone onto the siding, would not back out immediately. State v. Railroad, 52 N.H. 528. As was said in Smith v. Railroad, 70 N.H. 53, 85, "familiarity with the manner in which the railroad is operated and the times when trains pass over it might excuse a traveler, under some circumstances, from looking or listening for a train when about to pass over the crossing."

The plaintiff's testimony on the question of the decedent's care was certainly as full and definite as it was at the former trial, which, it has been decided, was sufficient to require the submission of the question to a jury. Minor v. Railroad 73 N.H. 317. The defendants' testimony, while conflicting with the plaintiff's in some particulars, tended to confirm it in other particulars. There was no such certain and conclusive verity and preponderance in it as would enable one to say with confidence that reasonable and impartial men, upon considering and weighing it in connection with the plaintiff's testimony, would not differ in their judgments, but must unanimously come to the conclusion that the decedent's death was due, in part at least, to her own want of due care. Deschenes v. Railroad, 69 N.H. 285; McGill v. Granite Co., 70 N.H. 125, 129.

The defendants cite Gahagan v. Railroad, 70 N.H. 441, and urge the proposition that this case is on all fours with it. That case was taken from the jury "because upon the evidence there is no disputed question of fact to be determined." Ib. 446. Gahagan "walked upon a railroad crossing within a railroad yard, over which he knew trains and shifting engines were frequently passing." Ib. 445. According to the plaintiff's evidence in this case, Mrs. Fitzgerald's knowledge as to the use of the defendants' railroad yard was that no shifting was done in it during the afternoon hours; or, in other words, the fact within her knowledge was the direct opposite of that which was within Gahagan's knowledge. This case also differs essentially from State v. Harrington, 69 N.H. 496, and Boston Maine R. R. v. Sargent,72 N.H. 455, cited by the defendants. In the first case there was no conflict in the testimony upon the point as to which the verdict was ordered; and in the second case there was an estoppel arising from a prior judgment which entitled the plaintiffs, as a matter of law, to a verdict upon the point as to which it was ordered. Nor does Arnold v. Prout,51 N.H. 587, support the defendants' position. In that case, the court, after noting that there was no evidence tending to prove that the delivery of the ale in suit was to be in this state under the contract for its sale, — the point on which the verdict was ordered, — said: "The counsel for the defendant are right in their position that if there was any evidence, though slight, tending to rebut the position that the delivery was in New York, the question ought to have been submitted to the jury." The defendants' exceptions to the denial of their motion for an order directing a verdict in their favor and to the denial of their request for similar instructions to the jury stand no better than their exception to the denial of their motion for a nonsuit upon the former transfer of the case, and, like that exception, they must be overruled. Minor v. Railroad, 73 N.H. 317.

The defendants also excepted to the denial of their requests for certain other instructions to the jury. These requests were made in several different forms, but the following may be taken as a sample of one class of them: "Upon the undisputed evidence, Mrs. Fitzgerald was familiar with the course of business at Cherry Mountain station, and she walked from the platform onto the Hill siding without taking any precautions to learn whether the train was moving. In so doing she was guilty of negligence which prevents a recovery, unless an ordinarily prudent person, familiar with the course of business at that station, would have understood that there was no danger of this engine and car backing at the time she undertook to cross. A person of ordinary prudence could not so understand, unless it was the usual practice for the engine and combination car to pull onto the Hill siding at this time of day and remain there for a considerable time. Unless, therefore, you find that it was the usual practice for the engine and combination car to pull onto this particular siding when they arrived from the Hill at 12:50 and had discharged the passengers, and to remain upon this siding for a considerable time before again moving, your verdict must be for the defendant railroad." In determining the question of the decedent's care, an important fact to be taken into consideration was the state or character of her knowledge as to the movements of the Jefferson Hill train, etc., in the Cherry Mountain yard. Would her habitual observations of these movements naturally produce (1) the impression upon her mind that the locomotive and car of the train customarily pulled onto the branch siding immediately after its passengers had alighted, and remained there until late in the afternoon; or (2) the impression that whenever in the afternoon they pulled in there they usually remained until four or five o'clock; or (3) the impression that the locomotive alone, or in connection with the car, was usually engaged for a time immediately after its arrival at the station in shifting cars about the yard, including the branch siding, and did not go upon the siding to remain, if at all, until later in the afternoon; or (4) the impression that whenever the locomotive was about to move in shifting cars or other service its bell was rung, and it moved very carefully and under control? Or, summarizing these matters in a more general form, was the decedent's knowledge such as reasonably to induce a belief that the locomotive and car pulled onto the siding to remain at this particular time, or a belief that it was engaged in shifting cars or other service? If it was such as reasonably to induce the former belief, the decedent might well be regarded as in the exercise of due care in going upon the siding as she did; but if it was such as reasonably to induce the latter belief, the jury would probably have no difficulty in finding that her conduct was wanting in the element of due care, provided they found that the bell was rung before the locomotive started. The defendants' request for instructions above quoted, besides being objectionable because it gives undue prominence to portions of the testimony and is argumentative (Spalding v. Brooks, 58 N.H. 224; Phoenix etc. Co. v. Clark, 59 N.H. 345; Fogg v. Moulton, 59 N.H. 499; Rublee v. Belmont, 62 N.H. 365; Davis v. Railroad, 68 N.H. 247, 252), is objectionable because it ignores, or, rather, decidedly diverts attention from the proposition that if the decedent's knowledge was such as is referred to in the first (1) or second (2) of the alternatives above enumerated, and the bell was not rung as the locomotive was about to start, she might reasonably be regarded as without fault. This request and the others of the same class were properly denied.

Another of the defendants' exceptions was to the denial of their request for an instruction to the jury as follows: "If you find that the course of business was such that the movements of the engine and car, at the time of day when the accident happened, were variable and uncertain, Mrs. Fitzgerald was not justified in stepping upon the track without looking to see whether they were in motion, and the plaintiff cannot recover." An instruction of this kind would be faulty, because it would divert the jury's attention from the testimony relating to the defendants' rules as to the giving of a warning when the locomotive was about to move and its control while in motion, and the probable knowledge acquired by the decedent regarding these matters from her habitual observations. Davis v. Railroad, 68 N.H. 247. The request for this instruction was also properly denied.

The request for an instruction that the decedent was a trespasser and the plaintiff was not entitled to a verdict unless her peril was discovered by the defendants' employees in season to prevent injury to her by an exercise of ordinary care, was properly denied, for the reasons stated in the former opinion in this case. Minot v. Railroad, 73 N.H. 317, 321.

One of the witnesses called by the plaintiff was allowed to testify, subject to the defendants' exception, that the one o'clock Jefferson Hill train, for four or five years prior to the summer of 1902, was handled just the same as it was that summer. The defendants say this testimony was irrelevant and calculated to mislead the jury. It had the same relevancy to the questions on trial that the testimony had relating to the movements of the train during the summer of 1902. The uniformity of the custom for four or five years would be likely to impress the decedent, who resided near the station for some years and habitually observed the movements. It had a natural tendency to make her knowledge definite and certain. Whether the testimony should have been limited to a briefer period than four or five years was a question that was within the discretion of the court to determine, and is not open to consideration here.

The defendants' exception to the declination of the court to limit the testimony regarding the custom as to the movements of the Jefferson Hill train to the time of day immediately following its arrival at Cherry Mountain is also overruled, for the reasons above stated.

The plaintiff, upon the cross-examination of the conductor and the engineer of the Jefferson Hill train, attempted to show that certain of the defendants' rules applied to the situation as the train backed down the siding, and required certain precautions. In doing so, he read the rules to the witnesses in the hearing of the jury and asked questions concerning their application. The defendants excepted to this course. It was a dangerous course for the plaintiff to take, but it does not appear that it could possibly result in any harm to the defendants in this instance. As to two of the rules read, the witness testified, in substance, that they had no application to the situation of the backing train, and neither of them was offered in evidence. One of them was, in substance, the same as another rule that was put in evidence by the plaintiff and obviously applied to the situation, and the other was entirely immaterial and harmless. A third one was put in evidence without objection.

Exceptions overruled.

All concurred.