Morris v. Boston & Maine Railroad

Snow, J. Accepting the plaintiff’s statement of the facts as true, it is clear that the collision would not have occurred if he had not stopped his car in the way of the oncoming train. If he is bound by *269 his testimony, and if it conclusively appears therefrom that he was negligent in the placement of the car in the way of the train, the negligence of the defendant’s servants prior to his act in bringing the car to a stop is immaterial. One of the vital facts in issue between the parties at the trial was whether the automobile was in motion or at rest when struck by the locomotive. The plaintiff testified that the car came to a stop west of the rail but before the car was in clearance of the path of the locomotive, and that it remained there during his inquiry of the agent, and the answer, and while he looked toward the train. All of the other eye witnesses to the collision, four in number, testified that the locomotive hit the car while it was moving across the track. Whether or not the car came to a stop, was a fact peculiarly within the plaintiff’s knowledge. His statement that it stopped was clear and unequivocal. His testimony was either true or deliberately false. In either event, he is bound by it in so far as it affects the determination of his rights. Harlow v. Leclair, 82 N. H. 506, 512; Fraser v. Railway, 84 N. H. 107, 111; Saidel v. Society, 84 N. H. 232, 233; 50 A. L. R. 980. It may be conceded that the conduct of the defendant’s agent was a circumstance bearing on the plaintiff’s care in approaching the main track without looking to the north. But the signal to come across the track and stop for a conference, as the plaintiff interpreted the agent’s act, did not include an invitation to come to a stop in the way of a possible train. No such claim is made by the plaintiff. There was nothing in the agent’s signal as understood by the plaintiff, which called for a precipitate stop. It was not the case of a mistake in judgment in a situation where there was a restricted field of action. Bridges v. Company, ante, 220. There was no limit to the distance he could have proceeded across the track before bringing his car to a stop. He had no intimation as to how long the conference with the agent was to last. According to the plaintiff’s chalk, used in evidence, some portion of his car when hit was astride the westerly rail of the freight house track if not above the rail of the main track. He had worked on the block signal at this point, was familiar with the crossing and described the customary traffic across it. He testified that the accident occurred about one o’clock; that he knew a train was due to pass between twelve and one; that he “didn’t know whether it had come or not;” that he had it on his mind as he “started across that crossing that a train might be coming;” that he was thinking of the possibility of “a train coming from the north;” that he knew it was a dangerous thing to stop where he might be hit by a train. It could not be found *270 that a man of ordinary prudence, with the plaintiff’s knowledge, under such circumstances, would stop in the path of a possible train on the main track without first having exercised all his available senses to determine whether a train was approaching and if he was in clearance. He had traveled forty-five feet at five miles per hour since he had looked north. His conduct in thus stopping his car where it would be hit by a passing train without looking and taking simple precaution whether he was in clearance was conclusive evidence of his negligence. See Bursiel v. Railroad, 82 N. H. 363, 367, 369. It follows that the plaintiff can recover, if at all, only under the last clear chance doctrine. The doctrine has no application here unless the engineer saw the plaintiff, or otherwise knew of his presence, after he was in a position of danger from which he could not extricate himself in season to have stopped the train before the collision; or unless the agent, after seeing the car stopped, or coming to a stop, in the path of the engine, knew or ought to have known that the plaintiff was oblivious to his peril, and could thereafter have apprised the engineer thereof in season for the engineer to have avoided the collision. Olsen v. Railroad, 82 N. H. 120, 124; Bursiel v. Railroad, 82 N. H. 363, 370; Jones v. Railroad, 83 N. H. 73, 81, and cases cited; Webster v. Seavey, 83 N. H. 60, 62; Stocker v. Railroad, 83 N. H. 401, 403. It is true that the jury was not bound to believe the statement of the engineer that he did not see the car until after the impact. A finding that he saw it in season to have avoided the collision could be based on other substantial evidence, if any, from which the deduction could be reasonably drawn. Collette v. Railroad, 83 N. H. 210, 213. In other words, in so far as the negligence of the engineer is here relied upon, there must be evidence from which reasonable men, on the balance of probabilities, could find that the engineer did see the car and by the exercise of due care could have stopped the train in season to save the plaintiff from the dangerous situation in which he had negligently placed himself. The mere fact that the car or some part of it was within his possible vision when the train was at the minimum distance in which it could have been brought to a stop, does not warrant a finding that he saw the car in season to avoid the collision. To so hold would be to disregard the fact, which is of common knowledge, that the human senses, mind and muscles do not act and respond one to another, instantaneously or with mechanical precision. The conclusion that the engineer saw and could have acted effectively must be a reasonable deduction from the situation in which he was placed, having in mind the normal human limitations. Any rational con *271 sideration of the issue must include the engineer’s position, the area and the objects therein which he was required to keep under observation in the performance of his duties, the range of vision necessary to include such area and objects, the physical limitation of his view easterly by the front of a moving engine of the Pacific type, the distance the car projected westerly past the easterly line of his vision, the length of time any part of it was within his possible view, the emergency under which he was required to act, if at all, (Carney v. Railroad, 72 N. H. 364, 372; Precourt v. Driscoll, post 280) and the time required to transmit into effective brake action the information acquired by his observation. The uncontradicted evidence as to the position of the engineer and his view easterly was that he was sitting on his seat, on the right hand side of the locomotive, keeping a lookout from the side window; that 674 feet away he could see three tracks on the crossing; that the boiler, which extended forward thirty-three feet, restricted his view as he approached the crossing; that at a point 200 feet from the crossing his view easterly was limited to the west rail of the passing tract A and from that point rapidly lessened until he could see no farther east than the westerly rail of the main track. It must be conceded that his duties were not limited to watching the point on the crossing where a car approaching from the east might emerge past the front end of the locomotive. It is a matter of common knowledge that his duty required him to be on the lookout for danger at all points within the compass of his view including cars approaching from the west, as well as persons on the station platform, and for signals from the station agent. It appears that the crossing was a blind crossing to persons approaching from the west and that the engineer saw the agent upon the platform. The only evidence bearing on the position of the car when at rest, with reference to the westerly rail of the main tract, was the plaintiff’s expressed doubt whether his car was in clearance after he glanced at the approaching train, and the undisputed facts that the car was an open “old type Ford” of 1922 model, that the front end of the engine struck the right rear mudguard of the car, and dented the car body on the right near the rear, and that the impact removed the rear wheels and turned the car about so that it faced easterly. On the evidence most favorable to the plaintiff the car was stationary prior to the time he saw the train 128 feet away, only for the period consumed by his inquiry of the agent, the latter’s reply and the turning of the plaintiff’s head to the north. To find the maximum time *272 any portion of the car projected beyond the westerly rail of the track we may add the time consumed while it was proceeding the distance which any portion of the car was in the engineer’s possible vision while coming to a stop from a Speed of five miles per hour. The plaintiff testified that, at the speed he was traveling, he could stop the car while traveling a distance of two feet. No direct evidence was submitted as to the time these events took. On the plaintiff’s statement, however, the time at best was momentary, and as we have said before he is bound by his own testimony. The evidence taken most favorably for the plaintiff is that the train was traveling between fifteen and twenty miles per hour and that it could be brought to a stop in the distance of 140 feet. The distance, however, at which the engineer must have seen the car in order to have taken effective action to save the plaintiff is necessarily materially greater that 140 feet, since an appreciable time was required for the unexpected presence of the car in the place of danger to register on the mind of the engineer, for the engineer to reach for the brake lever and for the brake to operate. In considering the agent’s conduct, so far as it was material to the application of the last clear chance doctrine, it must be kept in mind that the collision would not have occurred if the car had not stopped in the way of the train and that the negligence of the plaintiff was concurrent with any want of care on the agent’s part during the time the car was in the act of stopping, and was stopped, up to the time the plaintiff looked north. Batchelder v. Railroad, 72 N. H. 528, 530. Moreover, some time was required for the agent to appreciate that the car was coming to a stop within the path of the train and to have signaled the engineer, and for the engineer to have acted. It would be mere conjecture on the evidence, to say that either the agent or engineer actually saw the car stopped, or in the act of stopping, in season to appreciate the plaintiff’s danger and to have transmitted such appreciation into an effective application of the brakes in time to have saved him from the result of his own negligence. Collette v. Railroad, 83 N. H. 210, 213, 218; Johnson v. Railroad, 83 N. H. 350, 364. It follows that the evidence did not warrant the application of the last clear chance doctrine. The defendant’s motion for a directed verdict, as respects the plaintiff Morris, should have been granted. Morris was granted the use of the car for the afternoon and was proceeding on his own mission when the accident occurred. There was no evidence or claim that he was an unsuitable person to be en *273 trusted with the car. The fact that he was to return to Rolfe’s sheds for Laro at five o’clock does not conclusively establish that he was either the servant or the agent of Laro. Laro was therefore neither chargeable with Morris’ negligence (Groatz v. Day, 81 N. H. 417, 418, and cases cited) nor bound by his testimony. It could be found that the car was hit while crossing the main track; that it approached the crossing at five miles per hour and could have been stopped in a distance of two feet; that for a distance of forty-five feet he was looking away from the train; that the fireman was sitting on his seat keeping a lookout by the side window and saw the car approaching the crossing. It could be found on this evidence that the fireman was negligent in failing seasonably to discover the presence of the car on the crossing and the inattention of the driver, and in failing to warn him of the danger; and that such negligence was causal. It could also be found that the defendant was negligent in failing to sound the whistle when within five hundred feet of the crossing and that such negligence was a cause of the injury to the car. This subject is later treated at length. These conclusions make it unnecessary to consider the alleged negligence of the agent. The defendant’s motion for a directed verdict in Laro’s action was properly denied. Subject to exception, the plaintiff was allowed to show by the engineer that, in addition to giving the statutory whistle 1320 feet from the crossing (P. L., c. 249, s. 23), it was the practice when approaching highway crossings at grade to sound one long blast within 500 feet of the crossing. The ground of the exception is that, as this is a private crossing, the practice at highway crossings was immaterial, confusing and prejudicial. The evidence was competent on the issue of the plaintiff’s care, in explanation of his conduct in relying upon a whistle within five hundred feet of the crossing. The plaintiff had testified that he was listening for a train and heard no whistle prior to two short blasts sounded just before he was hit; that he expected to hear a crossing whistle if a train was coming; that from his observation of trains at other grade crossings “they always blow their whistle” within 500 feet from the crossing, and that he did not know of any different practice here. Jordan v. Railroad, 80 N. H. 105, 106. The evidence was also competent as tending to show knowledge by the defendant of the inadequacy of the statutory signal, 1320 feet away, to protect travelers under the conditions which exist at highway crossings, and, perforce, the need of additional protection in similar situations. Bridges v. Company, ante, 220 and cases cited. There was *274 evidence tending to show that many of these conditions existed here. It was shown that considerable use was made of the crossing by motor vehicles; that the crossing was a “blind” one to a driver approaching from the west. There was evidence that the view of travelers from the east was limited by structures situated north of the crossing. The contention of the defendant that the traffic was not comparable in speed or quantity to that on a highway merely presented a question of fact for the jury. The crossing was a private crossing maintained by the defendant as public. On the evidence it could be found that due care required the same protection accorded to travelers on public crossings. Stocker v. Railroad, 88 N. H. 401, 404. The relevancy of the evidence in the instant case differs from that in the Stocker case in that here comparison is made with the protection afforded at grade crossings generally, while in the case cited the comparison sought to be made was with that of particular crossings. The record discloses no misuse of the evidence. On the contrary the distinction between the rules and practice required and followed at public crossings and those applicable to private crossings was later fully shown, and the jury were told that there was no evidence on which “any breach of statutory duty in respect to whistling” by the defendant could be found; that the defendant’s duty was to give reasonable warning in view of all the circumstances; and that “if upon all the evidence you find that the situation at this crossing was such that reasonable care and prudence required that when trains were approaching it the whistle should be sounded and the bell rung, as they are at highway crossings, it was the duty of the railroad to provide such safeguards,” and that it was for the jury to say whether or not the whistle sounded 1320 feet away was all that reasonable care and prudence required. It is not perceived how the evidence excepted to could have confused or unduly prejudiced the jury. Where the evidence is admissible for one or more purposes and it is capable of use for an incompetent purpose it was the right and duty of the party aggrieved to request that its use be limited. Lord v. Railway, 74 N. H. 295, 298; Hussey v. Railroad, 82 N. H. 236, 245. No request was made. The defendant takes nothing by his exception. There is no merit in the defendant’s exceptions to the plaintiff’s argument commenting on the failure of the defendant to produce the fireman in person. The other exceptions to the denial of requests and to the allowance of arguments, so far as urged, relate to the suit of the plaintiff Morris. In view of the conclusions reached there is *275 no occasion to deal therewith, and they have not been considered. Robert W. Upton, for the motion. Demand, Woodworth, Sulloway & Rogers, opposed, were not asked to furnish a brief. Judgment for the defendant in the first action, Judgment for the plaintiff on the verdict in the second. All concurred.