94 A. 196 | N.H. | 1915
In an action for negligence at common law, the burden is upon the plaintiff to prove that he was in the exercise of due care at the time of the accident. Under section 2, chapter 163, Laws of 1911, the burden of proof is not placed upon the plaintiff; but if the preponderance of the evidence shows want of due care on his part, he cannot recover. So whether the plaintiff's action comes within the scope of the statute or under the common *561
law, if it appears by the weight or the preponderance of the evidence that his negligence contributed to cause the accident, he cannot prevail. The plaintiff was a healthy man in the full possession of all his faculties. "There is nothing to relieve the plaintiff from the fundamental rule in the law of negligence that freedom from fault contributing to the injury on the part of the person injured is essential to a recovery for the injury." Chabott v. Railway,
The plaintiff saw the Portsmouth train coming into the station on track 3, about 200 feet south of the place of the accident, when he was in the middle of the Lawrence platform, twenty-seven feet east of track 3. From that time until he stepped onto track 3 and the train was upon him, he paid no attention to it whatever; he neither saw nor heard it, although the bell was ringing. The direction that he went in walking toward track 3 caused him to face the incoming train to some extent. By looking, he could have seen the train and followed its course as it approached him, without turning his head. The plaintiff states that he gave the train no attention because he thought he had ample time to cross the track ahead of the train; that many times before, when he had been in the middle of the Lawrence platform, he had seen this train coming in at the same place and had crossed the track ahead of it; that he relied on the usual speed of the train, and it usually came in at six or seven miles an hour, but he did not know at what rate of speed it was coming in on the day of the accident, although he states it must have been much faster.
The plaintiff's reason for his inattention to his own safety did not warrant him to approach and attempt to cross track 3, upon which he knew a train was coming at an unknown speed within a short distance, without looking to see where the train was. If he had been deaf and blind, he would not have been less informed of his safety when he stepped upon track 3. The plaintiff claims that the train came into the station at a negligent and unreasonable speed. However that may be, it did not relieve him from the exercise of due care. As was said in Nashua etc. Co. v. Railroad,
"The law deals with the behavior of the parties in the situation *562
in which it finds them, regardless of how that situation was produced. If the two parties approach the point of collision asleep or inattentive, and neither wakes up or becomes alive to the situation, the concurrent negligence of both prevents a recovery from either." Cavanaugh v. Railroad,
The plaintiff relies upon Stearns v. Railroad,
The evidence shows conclusively that the plaintiff could have *563
escaped injury by the exercise of ordinary care. Upon this question reasonable men could come to only one conclusion. There was, therefore, nothing for submission to the jury. McGill v. Company,
Exception overruled.
All concurred.