45 A. 405 | N.H. | 1899
The defendants' motions for a nonsuit and for a verdict in their favor were properly denied, as there was evidence of negligence on the part of the defendants, and of due care on the part of the plaintiff, which warranted the submission of the case to the jury. They could properly find on the evidence that the defendants were negligent (1) in suffering an open *564
ditch to remain unguarded at the side and within the limits of the highway, from which ditch the fence or guard-rail had been removed in the construction of their railroad, thereby rendering the highway unsafe for travelers, and (2) in stopping at such a place for the plaintiff to board one of their cars as a passenger. The defendants would be liable at common law to any one who, in the exercise of due care, was injured by an obstruction or defect in a highway caused by their negligence. Paine v. Railway,
There is nothing in Parker v. Publishing Co.,
The case finds that the evidence tended to show "that the plaintiff exercised ordinary care." This conclusion was warranted by the evidence that at the time of the accident it was a dark and foggy night, that there was a shadow extending several feet from the rear and sides of the car, that the plaintiff was very near the rear end of the car when she fell into the ditch, that she could not see it, and that some others who were present were also unable to see it. From this evidence the jury could properly find that the plaintiff was in the exercise of due care at the time of the accident, notwithstanding there was other evidence to show that the lights of the car shone into the ditch so it could be seen.
Exceptions overruled.
CHASE, J., did not sit: the others concurred. *566