Fisher v. Railroad , 75 N.H. 184 ( 1909 )

While common observation may teach that in going from one construction to another, as from a room into a hall in a building, a difference in level may be expected, and that steps may be encountered at the place provided for entry and egress (Ware v. Society, 181 Mass. 285), it cannot be said to be common knowledge that a change in level is usual in a single construction, as the floor of a hall or room, or a railroad platform. In the absence of evidence that the platform construction which occasioned the plaintiff's injury was in common use, it could be found that such construction was peculiar and unusual. Whether under circumstances disclosed in evidence the plaintiff ought to have seen the danger thereby presented and protected herself, and whether the defendants ought to have anticipated the possibility of injury to passengers under such circumstances and have made some provision to call the change level to the attention of persons using the platform in transit from one train to another, are pure questions of fact, upon each of which a conclusion of favorable to the plaintiff is not so clearly unreasonable as to authorize the court to direct the jury to determine them in favor of the defendants.

The admission of evidence of what had happened to others in the use of the platform was not error of law, even if the evidence might properly have been excluded as matter of discretion. Cook v. New Durham, 64 N.H. 419. There is no difference in principle between the admissibility of experimental evidence in determining the horse-frightening capacity of a pile of lumber and its use in this case upon the question of the accident-causing capacity of the platform. Such evidence is the foundation of the defendants' claim of freedom from fault because of the alleged long use of the platform without accident or inconvenience. Lafflin v. Railroad, 106 N.Y. 136; Loftus v. Ferry Co., 84 N.Y. 455. The evidence was competent as a direct answer to this claim. While it did not appear that injury had resulted in any other case, the fact that persons "stepped off from one elevation to the other without noticing that there were any steps there" indicated the probability of injury to some one; and the instances were sufficiently numerous to authorize the conclusion that knowledge of them must have come to the defendants' employees.

Exceptions overruled.

All concurred.