Mitchell v. Railroad , 68 N.H. 96 ( 1894 )

The evidence of the existence and use of the pathway across the railroad yard, and that at or near it animals were loaded upon or unloaded from the cattle train, was competent on the question of the defendants' negligence. Their knowledge of its existence and use was material, and the evidence tended to show their knowledge. Known public travel, whether licensed or unlicensed, across their tracks would affect the measure of the ordinary care required of them. The conduct of a person of average prudence in doing his lawful business is the legal standard of duty. Such a person running a locomotive engine would manage it with greater or less caution according as he is passing through a mob, over the crowded streets of a city, the less traveled highways of a village, the comparatively unfrequented country ways, or a territory where there is no crossing, and no reason to expect any one to be upon the track. The measure of his care would be proportionate to the danger of injury from the want of it. Knowledge that those who he knew were exposed to danger were wrongdoers, would not diminish his vigilance. He would, if he could, avoid doing harm to trespassers as well as to those who are exercising their lawful rights.

The objection to the instructions to the jury relating to the existence and use of the pathway, of the special ground that there was no evidence tending to show that the engineer of the Profile knew of the travel across the yard, is without foundation fact. He testified in substance that he knew of the travel. Without his testimony the jury might, on the evidence of the notoriety of the travel, properly find his knowledge. But the engineer's personal ignorance of the situation would not excuse the defendants. If they knew the use made of the pathway, it would not be important whether their servant, the engineer, knew it or not. If he knew it, and in view of it failed to act as a person of average prudence would, his individual fault was that of the defendants' servant for which they are responsible. If he neither knew nor reasonably could have known the situation, and was therefore personally without fault, the negligence was more immediately and directly that of the defendants in not informing him of the pathway and of its use. A master is as responsible for injuries caused by his negligence in not informing his servant of danger known to him and not known by the servant, as he is for injuries caused by the personal negligence of the servant. He is not less responsible for his own negligence than he is for that of his servants.

The motion that a verdict be directed for the defendants was properly denied. There was sufficient evidence upon which the jury might properly find that the defendants could, and that the plaintiff could not, have avoided the injury. A failure to ring the bell in accordance with the custom and in compliance with the defendants' rules was evidence of negligence on their part. The jury might think and properly find that ordinary care required the fireman to be in his place on the engine when moving over the part of the yard used as a crossing, and that but for his absence the accident would not have happened. Whether a person of average prudence placed in the plaintiff's situation, possessed of the knowledge which he had of the custom and rule relative to ringing the bell before starting the engine, the general course of business in the yard and all the other circumstances, would have done as he did, was a fair question for the jury. It may be that upon it reasonable and fair-minded men might differ; but it cannot be declared that no reasonable man could find as the jury did. Bridges v. North London Railway, L. R., 7 H. L. 213, 233; Metropolitan Railway v. Jackson, 3 App. Ca. 193, 197; Dublin Railway v. Slattery, 3 App. Ca. 1155, 1197.

The question whether the bell was rung was a vital one. So far as the defendants' negligence was concerned, it was apparently the only fact in dispute. It appeared that the fireman of the Profile, the conductor of the cattle train, and Moulton, a dealer in cattle who had no connection with the defendants except as a patron, were within ear-shot, might have heard the bell if it was rung, and could have been, but were not, called as witnesses by either party. From a party's neglect to call accessible witnesses of the transaction in dispute it may justly be inferred that their testimony would do him no good. Cross v. Bell, 34 N.H. 82. It was competent for the plaintiff to argue, and ask the jury to infer, that the fireman, conductor, and Moulton would not testify that they heard the bell. The fact that Moulton was not the defendants' servant affected, not the propriety, but the weight of the argument. It was open to the defendants to argue that the plaintiff had equal opportunity to call him, and would have called him if he could testify that he did not hear the bell. If surprised by the plaintiff's closing argument on this or any other point, the defendants, upon request, would have been permitted to reply, subject to the plaintiff's right to close. Rogers v. Kenrick, 63 N.H. 335, 341.

The statement of the plaintiff's counsel that, "out of the whole population of Woodsville" the defendants were able to produce but two witnesses to testify that the bell was rung, was not objectionable. It was merely a forcible expression of the presumption that the defendants called on the point all the witnesses they could procure and of the conceded fact that of the nine or ten persons shown to be within hearing, and of others who the jury might find on the evidence were within hearing, two only were produced to testify that they heard the bell. The jury had a view, and from the information thereby obtained in connection with the other evidence, might find it more probable than otherwise that many persons not mentioned in the testimony laid before them were within ear-shot of the engine, and would have heard the bell if it was rung. A verdict is not to be set aside for the reason that counsel urged the jury to draw from admitted or established facts an unwarranted inference. Such an argument is merely an erroneous statement of the law. Whether the inference can properly be drawn, is a question of law. Whether, if it lawfully may, it shall be drawn, is for the jury. Dublin Railway v. Slattery, 3 App. Ca. 1155, 1201. It is the duty of the court to instruct the jury upon the law, and of the jury to obey the instructions. In the absence of evidence to the contrary, it is presumed that these duties were performed. If in Bullard v. Railroad,64 N.H. 27, the plaintiff's counsel, instead of stating to the jury as a fact that the physician had not examined the plaintiff and therefore was not called as a witness, had asked the jury to infer from the fact that he was not called, that he had not examined the plaintiff and therefore could not testify to his condition, he would not have transgressed the line of his duty.

The court properly declined to give the first three instructions requested. If the plaintiff was a trespasser, his misconduct would not relieve the defendants from their obligation to do him no injury that by ordinary care could be avoided. They were responsible for culpable ignorance of his dangerous situation as well as for negligence in any other particular. Nashua, etc., Co. v. Railroad, 62 N.H. 159, 162-164; Felch v. Railroad, 66 N.H. 318, 320. The doctrine of Clark v. Manchester, 62 N.H. 577, and Frost v. Railroad, 64 N.H. 220, has no application. What is there said is to be read in the light of the facts under consideration. There is a broad difference between the case of a trespasser meeting with an injury by reason of the dangerous condition of the defendants' premises, and that of an injury caused by the defendants' active intervention.

Instruction quite as favorable to the defendants as those last requested were given to the jury. They were correctly told that if the defendants exercised ordinary care to prevent the injury, the plaintiff though not a trespasser could not recover. There was no error in the instructions given.

Judgment on tire verdict.

CHASE, J., did not sit; SMITH, CLARK, and WALLACE, JJ., concurred; DOE, C. J., and BLODGETT, J., were of opinion that the charge of the presiding justice as reported in the reserved case probably gave the jury to understand that the defendants' duty towards the plaintiff was the same whether he was or was not a trespasser upon their tracks at the time of his injury, and upon this ground wholly they dissented.