Morris v. Railroad , 85 N.H. 265 ( 1931 )

I. It is argued that the evidence admits of a finding that the plaintiff was honestly mistaken in assuming that his automobile had come to a stop before the collision, and that, therefore, he should not be bound by his testimony to that effect. In support of this argument counsel invokes the explicitness of the testimony of the five eye witnesses, whom he qualifies as "attentive to the circumstances of the accident" and "in a position to know," four of whom testified positively that he was struck while moving across the track. While this evidence tends strongly to show that the plaintiff was wrong in his statement of the fact it does not support the conclusion that he was honestly mistaken. On the contrary it tends rather to refute the claim that the plaintiff could have honestly believed in the happening of the events which he enumerates in his testimony. On direct examination the plaintiff was clear and unequivocal in his statement that he came to a stop. Upon cross-examination he undertook to strengthen this position by giving circumstantial details of what occurred while he was stopped. In addition to his assertion that he was "standing still" when he made his inquiry of the agent, he said that, "after his car came to a stop", he "threw the gas lever up" because the motor "was racing," and that the motor then stopped; that he "was stopped before the motor did"; that when he saw the train coming he "stepped on the starter"; that the starter operated properly but "the engine did not start" because of the position of the gas lever. These detailed facts were matters peculiarly within his knowledge as to which he could not be mistaken. Recalled after the five witnesses had testified, he offered no explanation of the direct conflict in the evidence, and made no suggestion that he might be mistaken. On the other hand he confirmed his former position by the statement that he looked to the north again after he "passed the main track and was stopped." We fail to find anything in the record to support the claim that he was confused or uncertain as to what he actually did. On the contrary he showed himself a keen witness, and denied any want in the clearness of his recollection. Having testified positively in a matter deemed vital to the merits of his case, and in direct conflict with all the other witnesses, it would not be "consistent with honesty and good faith" to allow him now to rest his case on such opposing evidence on the ground that he was honestly mistaken. The case comes clearly within the doctrine of Harlow v. Leclair, supra, and the other cases cited in the opinion.

II. It is urged that, assuming that he stopped in the way of the train, his fault is not conclusively established since he supposed he was in clearance. The argument advanced is that a mistake of judgment is not negligence as a matter of law. The answer is that this abstract proposition has no application to the facts here. This is not a case where the plaintiff, suddenly finding himself without fault in a perilous position, might be found excusable for errors of judgment in extricating himself therefrom. The negligence charged here consisted of his conduct in placing himself in the hazardous position. His duty to himself and the defendant called for action which would exclude any chance of error of judgment. He had no right to stop as close to the track as he could and escape collision with a passing train. His duty was to get clear of its path beyond question. Another car length would have placed him outside the realm of danger and have dispensed with any occasion for the exercise of judgment. His desire to comply with the station agent's request for a conference would not have been defeated by the fact that he would be a car length further on his way.

It was not a case of distracted attention. He thought upon the subject of clearance and concluded that he was safe. Nor was it an instance of choosing between two dangerous courses of action in an emergency. His choice was between the normal and obviously safe course and one fraught with manifest peril.

The cases on which the plaintiff relies are plainly distinguishable. In Robinson v. Company, 79 N.H. 398, 399, an inexperienced boy of seventeen had been instructed to oil machinery while in operation, which could be done without injury if sufficient care was exercised. The fault charged was that "as the plaintiff was injured he did not exercise such care." It was pointed out that "The danger consisted in the possibility that from misjudgment as to position or momentary forgetfulness or inattention some portion of the operator's person or clothing might come near enough to the revolving gears, in close proximity to which the oiling operation was to be performed, to be caught between them." It was then said: "Whether in a particular case such misjudgment, inattention, or forgetfulness is negligence is plainly a question of fact." This falls very far short of a holding that misjudgment as to clearance of danger, when there is full opportunity to avoid possibility of danger and the occasion to use judgment, can be found to be the exercise of due care. In Sevigny v. Company, 81 N.H. 311, 313, the plaintiff's hand came in contact with unguarded machinery when a screwdriver slipped as she was tightening a screw. It was held in terms that "In view of the evidence that there were dangers involved in stopping the machine and that it was the practice to do this work in the way the plaintiff did" the issue of her care was for the jury. This affords no warrant for the conclusion that one can be found to be careful in voluntarily choosing a position of known danger when a place of obvious safety was equally open to him and the normal one to be taken. In Lacasse v. Atwood, 80 N.H. 384, 386, the language of Robinson v. Company is quoted as applicable to the conduct of a sixteen year old boy in failing to discover, during the haste of his work, that a board he was about to run over a grooving machine was cross-grained and therefore likely to break. In Hill v. Company, 81 N.H. 190, there is a like quotation, in application to an inexperienced, uninstructed servant, working in haste in a dimly lighted place, and coming in contact with a board used as a prop to hold up a heavy door, there being many such boards standing about, with no apparent use or purpose. In Hussey v. Railroad, 82 N.H. 236, Robinson v. Company, supra, is cited but to another point. To these cases may be added Folsom v. Railroad,68 N.H. 454, where it is said "a mere error of judgment is not necessarily negligence." But, as there pointed out, the plaintiff found himself suddenly in danger whatever action he might take.

None of these cases offers any precedent for a holding that it could be found that this plaintiff was not negligent. It may be conceded that he made the guess of the average man when he concluded that he was in clearance. If that were the test of his due care he could be found not to have been negligent. But the average man would not have rested upon any such doubtful assurance of safety. The safe course was entirely open and apparent. Its adoption involved no issue of either safety or desirability.

If the plaintiff was not in fault in thinking that he was in clearance, he was derelict in acting upon such a belief upon anything less than the conclusive evidence of its truth which movement to the extent of another car length would have afforded. The exercise of the plaintiff's best judgment of course does not excuse him. He must do as well as the average man. That such a man would not rest upon his mere judgment that he had arrived at a point where he would escape great peril, and stop on the debatable ground, when a normal continuation of his movement for a few feet would put peril out of the question, seems a reasonable proposition to state as matter of law. But what he thought, or did not think, is immaterial, if thought is used in the sense of deducing conclusions from facts. While his knowledge is a circumstance to be considered upon the issue of his due care, yet the mental operation which is sometimes used in testing for due care is not that of the actor. "The thoughts, as well as the physical acts, of the average man constitute the standard . . . knowledge is a material factor in the problem, but the judgment to be exercised in view of that knowledge is that of the average man." Sevigny v. Company, supra.

But it may be said that his observation told him he was in clearance and that was a fact to him. Hence, it might be argued, his acting upon that fact cannot be treated as negligence. The answer is that already indicated. If he reasonably believed that he was in a safe place, he also knew that the margin of safety was small, that the chance of injury was great, and that there was no reasonable excuse for not making the margin ample beyond doubt. Taking hair breadth chances, when there is no occasion to take any chance, is negligence, as matter of law. Reasonable men do not take such chances.

III. Counsel's argument that it could be found that the agent and the fireman respectively had the last clear chance to act while the car was approaching the crossing loses sight of the facts that the car would not have been hit if the plaintiff had not stopped in the way of the train, and that he was conclusively shown to be contributorily negligent up to the time he tried to start the car. It is grounded on the position that the agent and fireman, one or both, might have signaled to the engineer in season to have prevented the plaintiff from negligently stopping in the way of the engine. This is not the last clear chance doctrine.

The plaintiff further sets up a computation based upon the estimated speeds and distances traveled by the automobile and engine from which, it is reasoned, an inference could be drawn that the car came into the engineer's view when he was three hundred feet from the crossing. It is argued that, on this combination of estimates, it could be found that the engineer actually saw and should have appreciated the plaintiff's predicament at that distance. The result of the computation is in the teeth of the plaintiff's testimony. He was positive in his statements that he was stopped before he looked north only long enough to receive a reply to his inquiry and to turn his head to the north, and that the engine was then at a point 128 feet away and that he was hit almost instantly as he put his foot on the starter. If the plaintiff were not bound by his testimony so explicitly limiting both the time and distance (Harlow v. Leclair, supra), such a combination of estimates is not the substantial evidence required to show that the engineer actually saw the car. Clark v. Sharpe, 76 N.H. 446,447; Russell v. Railroad, 83 N.H. 246, 249. Moreover, the result reached is based upon so many fallible elements in the computation that a finding based thereon would be no more than mere conjecture.

Former result affirmed.

All concurred.