State v. Grand Trunk Railway , 65 N.H. 663 ( 1884 )

Clark, J.

Upon the facts stated, a jury could not reasonably or properly find a verdict for the state. There is no evidence that the defendant was negligent, or that the deceased was exercising ordinary care at the time of the -injury. On the contrary, there is affirmative evidence of carelessness on the part of the deceased, and of the exercise of due care by the defendant.

It appears that the deceased was in full health and strength, bodily and mentally; that he was acquainted with the railway station and its surroundings, and with the train he intended to take and the way it was operated there; that he was told by the defendant’s station agent that the train would have to go by the station on account of the grade, but-that he could wait till it stopped and then go up and get aboard; that knowing these facts he went upon the track when the train was approaching in plain sight about' six hundred feet distant from him; that when the engineer gave the danger signals he turned and looked back, then turned and walked from the track on the north side; that there was nothing to prevent his going upon the side track on the south side of the main track, and no obstruction on the north side of the main track except a soft snow-bank which he could step upon and over without difficulty; and that lie continued walking easterly on the north side of the track until he was struck by the end of the front cross-beam of the locomotive, which projected about eighteen inches outside the rail, and was thrown forward against the snow-bank, and fell or rolled under the train and was killed. Instead of disclosing any-evidence of ordinary care and prudence, these facts show that the deceased lost his life through his own carelessness.

It is unnecessary to consider whether the deceased, having no passage ticket, should be regarded as a passenger, because, assuming that he was entitled to the rights of a passenger, there is no evidence tending to show that the defendant was in fault as a carrier of passengers. The train was run in the usual manner. The deceased knew it would pass beyond the station before stopping, and he was not misled. A safe means of access to the train was pointed out to him. He was told that he could go up the track, after the train had passed, to the passenger car, which was at the rear of the train. As a passenger, he had no right to go upon the track in front of the train unnecessarily, or to obstruct the passage of the train in any manner. When the engineer saw the deceased upon the track, the danger signal was given, the deceased heard it, turned and looked toward the train, and then passed from the track and out of the sight of the engineer. The engineer had no reason then to apprehend that the deceased was in any danger from the train. He saw that the signal was heard and apparently heeded, and -having reason to think that the deceased had removed to a safe distance from the track, there was no occasion for stopping the train; and the defendant was in no fault because no attempt was made to stop it. Having warned the deceased of his danger, the engineer was justified in assuming that he would exercise ordinary care in avoiding the train after he left the track. There is no evidence authorizing a verdict that the death of the deceased was caused by the negligence of the defendant.

Judgment for the defendant.

Allen, J., did not sit: the others concurred.