Minot v. Railroad , 73 N.H. 317 ( 1905 )

The conduct of the deceased, from the time when she came in sight upon the station platform until she walked directly in front of the car and was killed, is fully disclosed by the evidence. During this time she did not look toward the car and took no precaution to ascertain if there was danger in stepping upon the track. Does the evidence of her failure to take any precautions immediately before placing herself in what proved to be a place of great danger preclude a finding that she acted with due care?

"Precaution is a duty only so far as there is reason for apprehension." Shea v. Railroad, 69 N.H. 361, 364. If she knew or ought to have known, as did the plaintiff in Gahagan v. Railroad, 70 N.H. 441, 445, that "trains and shifting engines were frequently passing" over the track, there is no escape from the conclusions of that case. If, on the other hand, the fact was that the track would not for several hours be used for the passage of engines or cars, she was under no obligation to guard herself against a non-existent danger. Her attention might properly in such circumstances be all given to the obstacles to pedestrianism presented by the railroad constructions in her path. In the one case there would be no evidence of care, in the other there would be nothing in her conduct to which negligence could be imputed. Hutchins v. Macomber, 68 N.H. 473, 474.

The case states that it was the usual, but not invariable, custom for the train in question to draw upon the siding and wait there several hours. Sometimes a different course was pursued. It is not quite clear from the case whether, when the engine was to be used for shifting, the train was drawn on to the siding. The evidence reported is not inconsistent with a finding that when the engine and car were drawn upon the siding, as in this instance, the universal practice hitherto had been for the train to remain there without moving for several hours. If this be so, there was ample evidence that her conduct was not careless. If, on the contrary, the engine and car were occasionally backed down on the siding, as on this occasion, the question is not so clear; but the lack of absolute certainty in fact would not decide it. If the deceased believed that the car would not be moved for several hours, her conduct at the time is to be measured by that of a person of ordinary prudence entertaining the same belief with the same certainty. Whether she was careful or negligent would be determined by the consideration whether such belief was reasonable or not. Whether a prudent person would understand from the course of business that there was at this time no such danger of the car backing down the siding as to require precaution to avoid injury thereby, is a question upon which the evidence is not so conclusive that some reasonable men might not decide it in the affirmative, as the case is presented. If the deceased entertained such belief as a person of ordinary prudence would as to the danger before her, and acted as such prudent person would act, her conduct was not negligent.

Evidence of the deceased's habit of care when crossing railroad tracks, and of her fear of trains, was excluded subject to exception. Such evidence is properly excluded when the conduct of the party is fully disclosed, but is admissible in other cases as having some tendency to show the exercise of care upon the particular occasion. Tucker v. Railroad, ante, p. 132. The evidence therefore was not competent in this case to prove care on her part from the time she was seen upon the station platform until she was killed. For a part of the time after she entered upon the railroad she was concealed by the station building from the witness who testified as to her conduct. If it were not conceded that she understood, when she began to cross, that the train had gone upon the siding, the evidence would have some tendency to establish that she looked and ascertained that fact during the time as to which her action is not disclosed by the evidence. This fact appears to have been conceded, and no harm was done by the exclusion of the evidence. Whether if she had looked she would have seen the brakeman making the hitch to the loaded car, and the inferences to be drawn therefrom by her and the jury, are not questions of law.

The path crossing the tracks westerly of the station and the steps leading down to their level, with the fact that the path and steps had been used by the public and the defendants' employees for many years, were evidence from which it might be found that the defendants should have anticipated that some one of the public or of their employees might be on the path at the place over which they were about to move the train. Reasonable men might also find that, having reason to anticipate a human being might be in a position to be seriously injured by the action contemplated, men of ordinary prudence, having regard to their general obligation to so conduct their lawful business as not to injure others, would not set in motion forces which might have that result, without taking some precautions to prevent it. This would be true, whether the persons who might be injured were in legal definition trespassers, licensees, or invitees. Mitchell v. Railroad, 68 N.H. 96; Shea v. Railroad,69 N. H, 361; Davis v. Railroad, 70 N.H. 519; Myers v. Railroad,72 N.H. 175. The evidence was that no precautions whatever were taken. The entire absence of care is at least evidence of negligence. The fact that usually the train, after going upon the siding, remained there several hours without moving furnished an additional reason for the exercise of care in taking unusual, and hence probably unexpected, action. The rule requiring the bell to be rung when an engine is about to move is evidence of a precaution which prudent men would take in all cases in operating such a machine.

Whether rules 85 and 669, also put in evidence, are material upon the question of the care exercised by the defendants' employees in the management of the passenger car, engine, and freight car, would depend upon the danger the rules were intended to avoid, and upon whether this combination was a passenger, freight, or mixed train, or a train of some description, within the meaning of the rules. As the case stands, these rules do not appear to be material. Whether they should be admitted upon another trial may depend upon evidence not now before us. There was other competent evidence of the defendants' fault, and the case should have been submitted to the jury.

Exceptions sustained: new trial granted.

All concurred.