State v. Railroad , 58 N.H. 410 ( 1878 )

"The proprietors of any railroad" are liable to indictment. Gen. St., c. 264, s. 14. "The term proprietors of a railroad shall include the corporation to which any railroad was originally granted, or into whose hands it has subsequently passed, the assignees or trustees to whom any railroad has been mortgaged for the security of debts, and any company or persons to whom it may have been conveyed. No sale, lease, mortgage, or contract, for the use of any railroad, shall be valid unless it shall be in writing," c. Gen. St., c. 145, ss. 1, 2. These two sections of c. 145 do not mean that a person operating a railway, and having the exclusive possession and control of it, is not a proprietor liable to indictment under s. 14 of c. 264. His liability under that section does not depend upon the validity of a contract under which he operates the road and assumes to be proprietor of it. He need not be the proprietor de jure in every legal sense and for every legal purpose. If he is proprietor in fact, he has the common law duty of reasonable care; and the statute on which this indictment is found enforces that duty. The owner of a railway or hotel is the proprietor, in a certain sense, but he might not be liable for the negligence of another who became proprietor by trespass and usurpation.

In the admission of the evidence of the speed at which G. drove the train at the same place at other times, there was no error of law. Whether such evidence should be excluded for remoteness of time or place is a question of fact. State v. M. L. R. R., 52 N.H. 528, 549; State v. Colston,53 N.H. 483, 484; Hall v. Brown, 58 N.H. 93, 96; Shailer v. Bumstead,99 Mass. 112, 130; State v. Hoyt, 46 Conn. 330, 336; cases cited in52 N.H. 411, and 57 N.H. 263, 284. The usage of another driver of another train, if, as a matter of law, it was not incompetent, might be excluded on the ground that, as a matter of fact, it had so remote a bearing on the case that it would be unreasonable and unjust to prolong and complicate the trial by the investigation of such a collateral question. It does not appear for what purpose this evidence was offered, or on what question it was claimed to be relevant.

Judgment on the verdict.

FOSTER, J., did not sit.