Gallagher v. Manchester Street Railway

Pike, J. Conceding the truth of the plaintiff’s evidence (Bullard v. Railroad, 64 N. H. 27, 30), the jury could properly find that he was in the exercise of ordinary care when he attempted to cross the tracks. But even if they could not, the plaintiff would not be prevented from recovering. “ If due care on the part of *213 either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. . . . To warrant a recovery, the plaintiff must establish . . . that by ordinary care he could not, and the defendant could, have prevented the injury.” Nashua Iron and Steel Co. v. Railroad, 62 N. H. 159, 164; State v. Railroad, 52 N. H. 528; Felch v. Railroad, 66 N. H. 318; Edgerly v. Railroad, 67 N. H. 312. It appeared that the plaintiff had got part way over the tracks when be saw the car approaching from the west. Being then for the first time aware of his danger, lie attempted to turn back, but before he had done so his wagon was struck by the car and his injury resulted. Certainly the jury might reasonably find that after lie realized his situation he acted with due care to avoid the injury. Folsom v. Railroad, 68 N. H. 454, 460. It could fairly be inferred that the motorman saw the plaintiff as soon as the plaintiff saw the approaching car. This was when they were about eighty feet apart. But the motorman did not attempt to stop the car until it was within fifty or sixty feet of the plaintiff. He might have stopped it much sooner than he did, but he relied upon his brake and did not reverse the power. From this evidence it might reasonably be inferred that the plaintiff’s injury was due to the defendants’ negligence. The defendants’ evidence was but a contradiction of the plaintiff’s, and the case was properly submitted to the jury. Abbott v. Railroad, 69 N. H. 176, 177. Exceptions overruled. Peaslee, J., did not sit: the others concurred.