Copeland v. Exeter, Hampton & Amesbury Street Railway Co.

Plummer, J. The jury were instructed, without exception, that there was no evidénce of negligence on the part of the defendants except as regarded the conduct of the motorman. The plaintiff’s ward, being too young to exercise care for his own safety, cannot be guilty of contributory negligence. Carney v. Railway, 72 N. H. 364. Therefore, the exceptions to the denial of the defendants’ motions for a nonsuit and for the direction of a verdict in their favor present the sole question, whether in the whole case there is any substantial evidence tending to prove that the motorman was negligent at the time of the accident. Burnham v. Railroad, 69 N. H. 280. It is apparent that there is no evidence upon which it could be found that the conduct of the motorman was at fault after he saw the child; for as soon as he saw him, he shouted, rang the gong, reversed the power and set the brakes, and continued shouting and ringing the gong until the child was struck. He did everything he *449 could to avoid the accident. When he first saw the child the car was thirty-five to sixty-five feet away, running on a down grade of about four per cent at the rate of twelve to fifteen miles an hour, and it is not contended that a car going at that rate of speed on such a grade can be stopped in less than seventy-five or eighty feet, and at that distance only when everything works favorably; so notwithstanding the motorman did everything in his power to stop the car before it struck the child, it was impossible for him to do so. The testimony also shows that the motorman was not negligent in not discovering the child sooner. It appears that just before he saw him, he saw a little girl in the lower driveway some twenty feet from the electric car track, and rang the gong to give her warning. This demonstrates that he was alert and attentive to his duty at the time and indicates that he was looking ahead of him to the lower driveway; and if the little boy had been in sight sooner, he would have seen him, as he did the little girl. Without doubt, the little boy was sitting or lying down behind the bushes or grass that was by the side of the driveway, and when he rose up or came from behind the bushes or grass the motorman saw him. The plaintiff claims in her brief that the evidence warranted a finding either that the motorman discovered the child in a place of danger when about 160 feet away, or that, with the car going at the rate it was, he ought to have discovered the child in time to stop. The plaintiff fails to point out any evidence that would warrant any such findings, and no such evidence is in the case. It is not understood to be seriously contended that the jury would be warranted on the evidence in finding that the motorman was negligent in not stopping the car before it struck the child, or that in the exercise of reasonable care he should have seen him sooner, but that he should have been running the car at such a rate of speed that he could have stopped before striking the child, and that upon this ground the jury were warranted in returning a verdict for the plaintiff. There is no evidence presented to show at what rate of speed the car should have been going in order for it to have been stopped after the child was seen and before he was struck, or in thirty-five to sixty-five feet. The plaintiff assumes that, if the car had been going four or five miles an hour, it could have been stopped in time to have averted the accident. Taking that assumption as correct, could it be found that the car should have been run at that rate of speed where the accident occurred? The motorman was running his car in a sparsely settled neighborhood, passing the plaintiff’s *450 house in which small children lived, on a down grade of about four per cent, and approaching a driveway some 130 feet from the house, which was unplanlced, unused, and covered with grass, that he could see for a long distance, where he had never seen any children on or near the track, and where, so far as appears, children were not accustomed to play. The situation disclosed by these facts did not demand such precaution as the plaintiff claims, for the motorman had no reason to apprehend that small children might be in a position of danger at the driveway, or even if they were, that he might not be able to see them in time to prevent an accident. If the place of the accident had been at a blind driveway, planked and in use, situated near a house, in a thickly settled neighborhood where children were accustomed to play, there would be ground for the plaintiff’s contention; but with the circumstances as they were, it could not be found that due care required the running of the car at four or five miles an hour, or a little faster than a person would go at a brisk walk. Such a requirement at the place of the accident and at places equally dangerous would undoubtedly render the operation of the defendants’ railway impracticable. The accident was unavoidable. It was-caused by the unexpected and thoughtless act of a young child for which the defendants were in no way responsible. jExceptions sustained: verdict set aside: verdict and judgment for the defendants. All concurred.