Colston v. Railroad , 78 N.H. 284 ( 1916 )

"Section 1. If any person shall without right enter upon or remain in any right of way, tracks, yard, station ground, bridge, depot, or other building of any railroad, when notice has been posted forbidding such trespass, he may be fined not exceeding twenty dollars; and no right to enter or be upon any railroad track shall be implied from custom or user however long continued.

"Sect. 2. If any person shall be injured while engaged in any act prohibited by section 1 of this act, neither he nor his executor or administrator shall have any cause of action against the railroad company for damages arising from such injury unless the injuries are occasioned by the willful or gross negligence of the railroad or its employees." Laws 1899, c. 75. The application of the act to the plaintiff's cause of action is not disputed. Her only ground of recovery is that her injuries were "occasioned by the willful or gross negligence of the railroad or its employees" within the meaning of the legislature. The only question discussed is as to the meaning of the words "willful or gross negligence."

The question of the plaintiff's care was taken out of the case by the instruction that there was no evidence she was careless. The only question presented by the failure to give the requested instruction and the special exception to the charge is whether, under certain circumstances, lack of ordinary care as matter of law constitutes wilful or gross negligence. This does not raise the question whether under the circumstances Crowe might not have been found guilty of wilful or gross negligence, a question which was plainly submitted to the jury, but asks for the determination of the question as matter of law. Negligence is a question of fact. This proposition has been adhered to despite strenuous effort to have certain acts, or the failure to act under certain circumstances, declared negligence as matter of law. Gahagan v. Railroad, 70 N.H. 441, 444-447. In this state of the law it is probable that if the legislature had intended to declare certain acts under particular circumstances "willful or gross negligence" the definition would have been made in plain terms.

Words in a statute are to be construed according to the common and approved usage of the language unless they have acquired a peculiar and appropriate meaning in the law. Opinion of the Justices, 73 N.H. 626; P.S., c. 2, ss. 1, 2. This was the theory of the charge. Gross was interpreted as great, and the theory of conscious knowledge attached to the word wilful in the plaintiff's request was adopted in the instructions. The legislature plainly intended to change the law. To claim that the intent was to require greater care of railroads who posted the required notice would be an absurdity. Hence the only change that could have been intended is one which requires them, when such notice has been posted, to exercise for protection from liability a degree of care less to some extent than that which had been required as the law had been administered. If there is logical absurdity in the terms wilful and gross negligence, there is no such difficulty in defining care. There are degrees in care if not in negligence. 18 Harv. Law Rev. 536. To hold that the defendants are liable for failure to exercise "ordinary care," — the rule at common law, — would abolish the statute. An attempt to determine what evidence would authorize a finding of liability under the statute would be dicta, if not legislation, and is not now undertaken.

Exceptions overruled.

All concurred.