Currier v. Boston & Maine Railroad , 78 N.H. 586 ( 1916 )

The plaintiff's position is that the deceased, John E. Currier, was a passenger on the train from Boston; that, when the stop was made in the yard to break the train in two, he understood his destination was reached and left the train in the yard, and was there run over, and that the defendants' negligence consisted in their failure to take sufficient precautions to prevent passengers innocently making this mistake. Assuming that upon proof of these facts the plaintiff would be entitled to recover, his case was erroneously submitted to the jury because of lack of proof. That the deceased was a passenger from Boston on the five p. m. train on the day of his injury, and that he was run over in the Nashua yard and received injuries which caused his death was in proof. But there was no evidence how the deceased, a passenger upon some portion of the train from Boston, came to be upon the tracks in the Nashua yard so as to be run over by the rear section of the train. The plaintiff assumes the deceased rode in the Nashua end but the only fact proved is that in some way he was transported to Nashua. Having assumed Currier was in one of the Nashua cars when the train stopped, the next assumption is that because sometimes local passengers left the car at this point some did on this occasion, that Currier although no station was announced saw passengers alighting and was led to believe he had arrived at his destination, Nashua; that these passengers opened the gates left closed by the brakeman, and hence Carrier had no warning it was not intended passengers should here depart from the train, and that finding himself in the yard instead of at the station, Currier was run over while endeavoring to reach the station. But if all this could be found without evidence, Currier was not killed as he stepped from the car but in some way got himself beyond the front end of the cars.

If he was not guilty of negligence in failing to remain in the car until the station was announced (Moses v. Railroad, 76 N.H. 570) he knew as soon as he reached the ground that the stop was not a station stop and he could not be found in the exercise of care while wandering recklessly among and over the tracks of a railroad yard with which he was unfamiliar, without evidence of a reason for such course. Various explanations may be offered and surmises suggested to account for Currier's conduct but they all rest in conjecture and not upon evidence. It is too well settled to require the citation of authority that the law does not transfer the defendants' property to the plaintiff without proof that the defendants' fault did, while the injured party's did not, cause the injury.

The case discloses no open and visible connection between the defendants' alleged fault and the injury, and there is no proof of circumstances from which the injured party's freedom from fault can be found. Mere conjecture cannot be substituted for proof.

Exceptions sustained: verdict and judgment for the defendants.

All concurred.