Bass v. Concord Street Railway

Peaslee, J. The defendants admit that it was their duty to use reasonable care in selecting a place to stop for passengers to alight. Call v. Street Railway, 69 N. H. 562. The case shows that the place where they might, and usually did, stop was much safer than the one where they stopped when the plaintiff was injured. There is no ground for contending that this was not sufficient evidence of their negligence. The plaintiff had been accustomed to get off the cars at the cemetery entrance and in so doing had never experienced any difficulty. Upon this occasion, with her attention largely absorbed in caring for her bundles, and being, as she considered, careful in her manner of alighting, she failed to look at the ground where she was about to step, and so stepped or fell into the hole opposite which the defendants had stopped the car. ■ It is contended that it is the duty of all alighting passengers to look; and if they fail to do so, it follows as a conclusion of law that they are negligent. No matter how many and convincing the surromiding circumstances tending to show the reasonableness of the passenger’s reliance upon knowledge of the situation obtained in some other way, they are not to be considered, because the definition of due care on the part of an alighting passenger has been developed into a formula as fixed as statute law. Decisions are to be found wherein such a doctrine has been upheld in other jurisdictions, but they proceed upon a theory so at variance with the law of negligence in this jurisdiction as to be of little value here. The rule in this state is that each case is to be determined in the light of its own circumstances. Ricker v. Hall, 69. N. H. 592. The fact that one about to cross a railroad at grade neither looks nor listens is not conclusive upon the question of his care, for his conduct is not to be judged by that fact alone. Davis v. Railroad, 68 N. H. 247, 252. *173 It may be conceded that if the plaintiff had looked she would have refrained from stepping as she did, and still the defendants may be liable. The fact that more precaution on her part would have prevented the accident does not necessarily defeat a recovery. The question is whether some fair-minded men might say that, with her knowledge and in her situation, she acted with reasonable prudence without further investigating the condition of the ground she was to alight upon. The test of her right to have the question of her care determined by a jury was not whether she did all that she could do in the way of taking precautions, but whether she did enough so that her conduct might be thought to be that of a person of average prudence. If in Foss v. Railroad, 66 N. H. 256, the plaintiff’s flustered state of mind might be considered a sufficient excuse for her not noticing the place where she was to alight, no reason can be given why this plaintiff’s preoccupation with her wraps and bundles might not be considered an equally valid one. If that plaintiff might rely upon the assistance offered by the conductor and brakeman as an assurance of safety, why might not this plaintiff rely upon the assumption that if the place was not safe she would be assisted or warned by the conductor? If a plaintiff’s belief in a railroad company’s knowledge of and presumed obedience to the speed law may be reasonable excuse for his want of vigilance in not observing an approaching train, — the sufficiency of which excuse is to be determined by a jury (Nutter v. Railroad, 60 N. H. 483, 485), — it is difficult to see why this plaintiff’s reliance upon the defendants’ performance of their duty as to the selection of a place to stop should not be treated in the same way. The ruling excepted to was in accord with the general principles of the law of negligence as held in this state, and followed the application thereof to the case of alighting passengers heretofore made. A different ruling would have been in conflict with the cases above cited. Considering all the surrounding circumstances, it does not conclusively appear that the plaintiff’s conduct was not such as reasonable prudence required, or that she was not justified in assuming, upon the information she possessed, that it was safe to alight where and as she did. The requests for instructions were based upon the same claim as the motion for nonsuit. Each instruction requested, in effect, a ruling that a certain fact does or does not constitute negligence, no matter what the surrounding facts and circumstances are. Like the motion for a nonsuit, these requests were properly denied. The evidence excepted to tended to prove that the defendants were notified of the plaintiff’s destination, and was properly admitted. Fxeeptions overruled. Pike, J., did not sit: the others concurred.