Cavanaugh v. Boston & Maine Railroad

79 A. 694, 76 N.H. 68, 1911 N.H. LEXIS 155

• Court: Supreme Court of New Hampshire
• Decided: March 7, 1911
• Status: Published

Opinions

Parsons, C. J.

The argument contained no statement of fact not in evidence. If the use of the word “protect” was an appeal to the jury to decide the case upon grounds which they could not properly take into consideration, the error was one of law which was cured by the instruction of the court. Seeton v. Dunbarton, 73 N. H. 134, 137; Leavitt v. Telephone Co., 72 N. H. 290, 292.

The remaining exception is to the denial of the motion for a nonsuit, -which was asked upon the ground of the absence of any evidence of care on the part of the person injured. As the case is drawn, it may be inferred that the existence of evidence of the defendants’ fault was conceded; but if such concession was not intended, this branch of the question requires little consideration. From the testimony of the engineer, it could be found that he knew the teams were approaching the crossing in ignorance of the coming train, at a time when he could have given warning or applied the brakes in season to prevent a collision; and from all the evidence it might be found he did not do either until too late. What the facts were, and whether the engineer’s failure to act was negligence causing the injury, were questions for the jury. The motion was properly denied if the jury could be permitted to find from the evidence of the conduct of the plaintiff’s intestate, a girl of thirteen years, that she exercised such care as could reasonably be required of such a person under all the circumstances of the case; or if she did not, that the defendants’ negligence, as distinguished from hers, was the sole proximate cause of the injury. The first question was not submitted to the jury, nor does the case disclose the form in which the second was presented to them.

Upon the evidence in the case, it was for the jury to say whether the exercise by the trainmen of such care as the circumstances required, after the engineer discovered the deceased, would have prevented the injury. If it would, the failure to exercise such care the sole proximate cause of the injury, although the danger was created by the deceased’s negligent inattention to the situation. This has been held in several cases upon facts identical with those presented here (State v. Railroad, 52 N. H. 528; Parkinson v. Railway, 71 N. H. 28; Little v. Railroad, 72 N. H. 61; S. C., 72 N. H. 502; Yeaton v. Railroad, 73N. H. 285; Altman v. Railway, 75 N. H. 573), and was conceded'in Stearns v. Railroad, 75 N. H. 40, 46.

The law does not justify an avoidable injury to the person of one who carelessly exposes himself to danger. Nashua etc. Co. v. Railroad, 62 N. H. 159. While the rule is clear, its application to the various situations found in this class of cases may involve some “nice distinctions.” Gibson v. Railroad, 75 N. H. 342. But the difficulties arise from the facts — not from the law. “While all [cases] are governed by the fundamental principle, that he, only, who by ordinary care can and does not prevent an injury is responsible in damages, it is impossible to formulate a rule in language universally applicable. A statement of the law correct in its application to one set of facts may be inaccurate when appliedto another.” Nashua etc. Co. v. Railroad, 62 N. H. 159, 164. The danger may be created by the inattention of both parties, neither discovering the other until neither can avoid the resulting injury. In such cases the injury and the danger result from the same cause, the negligent inattention of both parties, and there can be no recovery. Gibson v. Railroad, 75 N. H. 342; Batchelder v. Railroad, 72 N. H. 528.

If the trainmen see the traveler approaching the crossing, there still may be no evidence upon which it can be found that they ought to have apprehended the traveler would go upon the crossing in advance of the train. Gahagan v. Railroad, 70 N. H. 441; Waldron v. Railroad, 71 N. H. 362. In these cases the plaintiffs fail, not because of their negligence, but because of the absence of negligence in the defendants. The traveler may be seen by the trainmen in the act of crossing, at a time when they can avoid the injury and the traveler cannot. Stearns v. Railroad, 75 N. H. 40; Yeaton v. Railroad, 73 N. H. 285. The train may be discovered by the traveler at a time when he could avoid injury by care. In such case there can be no recovery, even if the railroad employees could have avoided the injury by like care. Shannon v. Railroad, 71 N. H. 286. The person injured may be incapable of taking care, and the railroad liable for negligent failure to discover him if they ought to have anticipated his presence in that condition. Edgerly v. Railroad, 67 N. H. 312. Such a case does not differ from that of property negligently permitted by the owner to be or to go in the way of the train. Laronde v. Railroad, 73 N. H. 247. The traveler may be discovered by the trainmen on the crossing, or approaching it as in this case, under circumstances indicating inattention to the train or-the crossing. In this situation, the cases cited hold that if ordinary men, with the information the trainmen have, would anticipate a collision at the crossing and^avoid it, the trainmen’s negligent failure to do so is the responsible cause of the injury. The rule of most general application deducible from the authorities is that the defendants are liable if, upon discovery of the danger, the plaintiff cannot save himself, while the defendants upon their discovery of the danger could have avoided the injury. Altman v. Railway, 75 N. H. 573; Little v. Railroad, 72 N. H. 61; S. C., 72 N. H. 502; Parkinson v. Railway, 71 N. H. 28; State v. Railroad, 52 N. H. 528.

As the negligence of the party injured in failing to observe the approach of the train continues until the very moment of the accident, or at least until it is too late for either party to avoid the injury, and since he could have stopped in a place of safety after the time when the trainmen could have done anything to prevent the accident, it has been claimed that if his negligent failure to observe and stop is not subsequent to any negligence in the operation of the train, it is at least concurrent, and there can be no recovery. The conclusion that one conscious of danger of serious injury to a human being if he persists in the course which he is pursuing, which he can prevent by care, should be discharged from responsibility because of negligent ignorance of the danger in the person injured, is so fundamentally unjust and contrary to natural reason that few cases are to be found that carry the logic of the rule of contributory negligence to that extent. With substantial unanimity, recovery is permitted in such cases, either upon the ground that the lack of attention in the party injured is not the proximate cause of the injury, or that the failure of the trainmen to act under such circumstances so far partakes of the nature of a wanton or intentional wrong that the law as to contributory negligence has no application. Murphy v. Deane, 101 Mass. 455, 463; Union Pacific Ry. v. Cappier, 66 Kan. 649, — 69 L. R. A. 516, note; Dyerson v. Railroad, 74 Kan. 528, — 7 L. R. A. N. S. 132, note; 1 Thomp. Com. Neg., s. 238; Í2 lb., s. 1598; Cool. Torts * 674. It may be that neither explanation is strictly logical, and that the real foundation for the rule is merely its fundamental justice and reasonableness. The justice of the rule, that “the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence” (Grand Trunk Ry. v. Ives, 144 U. S. 408, 429), may be a sufficient foundation for it.

Cases where at the time of the injury the plaintiff is not conscious of the danger in season to avert it, either because he is drunk, asleep, absorbed in introspection, or otherwise inattentive, while the defendant has knowledge of the danger, simply fall into the class where the defendant is present and the plaintiff is absent^ They are governed by Davies v. Mann, 10 M. & W. 546. The result in that case would have been the same if the plaintiff had been asleep by the wayside within shouting distance of his donkey. /The plaintiff’s inability to control the situation is the test; and it is /immaterial whether he is not in actual charge of the subject of injury because the absence of his body shows he could not have been, or the fact be proved by showing that for other cause he, himself, was not in control. Whether under such circumstances the defendant, upon the information he has, ought to have known of the plaintiff’s condition — that he was drunk, asleep, non-judging, or not observing — bears on the defendant’s negligence. If it cannot be found lie ought to have known the plaintiff’s condition, he is not liable; if he ought, he may be.

“The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property similarly situated in his absence.” The law deals with the behavior of the parties in the situation in which it finds them, regardless of how that situation was produced. If the two parties approach the point of collision : asleep or inattentive, and neither wakes up or becomes alive to the situation, the concurrent negligence of both prevents a recovery from either; but if one wakes up, or becomes aware of the danger existing from the fact that another asleep or inattentive is thoughtlessly in danger of injury by him, his fault, if he can but does not avert the injury from such danger, is alone the cause of the subsequent injury. There is no difference between sailing the seas with a rudderless ship and traversing the highway with a rudderless mind. One knowing the situation, who can by care avert a collision and does not, is chargeable for the resulting loss, despite the uncontrolled character of the other’s progress. Nashua etc. Co. v. Railroad, 62 N. H. 159.

The injury in this case arose because the defendants with their train and the deceased with her team both attempted to occupy at the same time a portion of a public highway which each had the right to use, but which neither had the right to occupy when it was in use by the other. Each was bound to such acts as would constitute .care under the circumstances, to prevent an attempt at such joint occupation. While due care would ordinarily require that the wagon should wait and allow the train to go by, the failure to exercise such care and the negligent occupation of the crossing by the wagon gave the train no right to attempt to pass at the same time. State v. Railroad, 52 N. H. 528, 556; Huntress v. Railroad, 66 N. H. 185; Gahagan v. Railroad, 70 N. H. 441; Little v. Railroad, 72 N. H. 502, 503; Continental Imp. Co. v. Stead, 95 U. S. 161. Whether the use of the crossing at the time by the traveler was careful or negligent, the train could not lawfully use it while it was in use as a part of the highway. Having notice that the traveler was about to use it at a time when they could have refrained from entering upon it, they are as much in the wrong and as fully the sole authors of the resulting injury as the traveler would be who attempted to pass with knowledge that it was in use by the train.

The situation is simply this: Both parties were proposing to exercise a common right which could not be enjoyed by both at the same time; the defendants knew of the deceased’s proposed use; the deceased did not know the defendants’ purpose. If the deceased was in fault for not knowing the defendants’ desire then to pass over the crossing, the defendants were in fault for attempting to cross while the path was in use. As the deceased’s negligent occupation of the crossing did not increase the defendants’ right to use it, they cannot recover of her for injury from their wrongful attempt, but must pay the damage done to her by their wrongful act. As her negligent act gave them no right to cross, it is immaterial in her suit for the injury whether her act of which they had notice was negligent or careful.

Exceptions overruled.

Walker and Young, JJ., concurred.