Nutter v. Boston & Maine Railroad

The defendants' motion for a verdict was founded on the claim that there was no evidence at the trial that the plaintiff was in the exercise of reasonable care at the time of the injury. There was evidence that the defendants' train was running at an unlawful rate of speed, and this fact might affect the question of the plaintiff's care. It may have been reasonable for the plaintiff to act upon the belief that the defendants were aware of the speed law, and would obey it. State v. Boston Maine Railroad, 58 N.H. 408, 410. The fact that the plaintiff did not stop and look for the approaching train before attempting to go over the track at a street crossing, is not, as matter of law, conclusive of the plaintiff's want of care contributing to the injury. State v. Manchester Lawrence Railroad, 52 N.H. 528. The plaintiff's belief in the defendants' knowledge and presumed obedience of the speed law may have been a sufficient excuse for his want of vigilance in not observing the approaching train; and whether or not it was a sufficient excuse is a question of fact, which was properly submitted to the jury. Warren v. Fitchburg Railroad, 8 Allen 227; Gaynor v. Old Colony Railway Co.,100 Mass. 214; Wheelock v. Boston Albany Railroad,105 Mass. 206. There was no error in the admission of evidence of the distance from Dover to Alton Bay and intermediate stations, and of the running time between. The time taken to run over the whole road or any given part of it would have some tendency to show the velocity of the train at any given point between stations, and the evidence was admissible for that purpose. Whether evidence of the speed at which the defendants' trains were run at the same place at other times was admissible, was a question of fact depending upon remoteness of time and place, to be decided at the trial. The judgment of the court admitting the evidence disclosed no error. The usual rate of speed may have had some weight on the question of the rate at the time and place of the accident. State v. Manchester Lawrence Railroad,52 N.H. 528, 549, 550; State v. Boston Maine Railroad, 58 N.H. 410, 412. The estimate of the rate of speed of the train by witnesses living near, and who were in the habit of observing the passage of trains, was competent on the subject.

Judgment on the verdict.

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