79 A. 694 | N.H. | 1911
Lead Opinion
The argument contained no statement of fact not in evidence. If the use of the word "protect" was an appeal to the jury to decide the case upon grounds which they could not properly take into consideration, the error was one of law which was cured by the instruction of the court. Seeton v. Dunbarton,
The remaining exception is to the denial of the motion for a nonsuit, which was asked upon the ground of the absence of any evidence of care on the part of the person injured. As the case is drawn, it may be inferred that the existence of evidence of the defendants' fault was conceded; but if such concession was not intended, this branch of the question requires little consideration. *70 From the testimony of the engineer, it could be found that he knew the teams were approaching the crossing in ignorance of the coming train, at a time when he could have given warning or applied the brakes in season to prevent a collision; and from all the evidence it might be found he did not do either until too late. What the facts were, and whether the engineer's failure to act was negligence causing the injury, were questions for the jury. The motion was properly denied if the jury could be permitted to find from the evidence of the conduct of the plaintiff's intestate, a girl of thirteen years, that she exercised such care as could reasonably be required of such a person under all the circumstances of the case; or if she did not, that the defendants' negligence, as distinguished from hers, was the sole proximate cause of the injury. The first question was not submitted to the jury, nor does the case disclose the form in which the second was presented to them.
Upon the evidence in the case, it was for the jury to say whether the exercise by the trainmen of such care as the circumstances required, after the engineer discovered the deceased, would have prevented the injury. If it would, the failure to exercise such care was the sole proximate cause of the injury, although the danger was created by the deceased's negligent inattention to the situation. This has been held in several cases upon facts identical with those presented here (State v. Railroad,
The law does not justify an avoidable injury to the person of one who carelessly exposes himself to danger. Nashua etc. Co. v. Railroad,
If the trainmen see the traveler approaching the crossing, there still may be no evidence upon which it can be found that they ought to have apprehended the traveler would go upon the crossing in advance of the train. Gahagan v. Railroad,
As the negligence of the party injured in failing to observe the approach of the train continues until the very moment of the accident, or at least until it is too late for either party to avoid the injury, and since he could have stopped in a place of safety after the time when the trainmen could have done anything to prevent the accident, it has been claimed that if his negligent failure to observe *72
and stop is not subsequent to any negligence in the operation of the train, it is at least concurrent, and there can be no recovery. The conclusion that one conscious of danger of serious injury to a human being if he persists in the course which he is pursuing, which he can prevent by care, should be discharged from responsibility because of negligent ignorance of the danger in the person injured, is so fundamentally unjust and contrary to natural reason that few cases are to be found that carry the logic of the rule of contributory negligence to that extent. With substantial unanimity, recovery is permitted in such cases, either upon the ground that the lack of attention in the party injured is not the proximate cause of the injury, or that the failure of the trainmen to act under such circumstances so far partakes of the nature of a wanton or intentional wrong that the law as to contributory negligence has no application. Murphy v. Deane,
Cases where at the time of the injury the plaintiff is not conscious of the danger in season to avert it, either because he is drunk, asleep, absorbed in introspection, or otherwise inattentive, while the defendant has knowledge of the danger, simply fall into the class where the defendant is present and the plaintiff is absent. They are governed by Davies v. Mann, 10 M. W. 546. The result in that case would have been the same if the plaintiff had been asleep by the wayside within shouting distance of his donkey. The plaintiff's inability to control the situation is the test; and it is immaterial whether he is not in actual charge of the subject of injury because the absence of his body shows he could not have been, or the fact be proved by showing that for other cause he, himself, was not in control. Whether under such circumstances the defendant, upon the information he has, ought to have known of the plaintiff's condition — that he was drunk, asleep, non-judging, or not observing — bears on the defendant's negligence. If it cannot *73 be found he ought to have known the plaintiff's condition, he is not liable; if he ought, he may be.
"The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property similarly situated in his absence." The law deals with the behavior of the parties in the situation 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; but if one wakes up, or becomes aware of the danger existing from the fact that another asleep or inattentive is thoughtlessly in danger of injury by him, his fault, if he can but does not avert the injury from such danger, is alone the cause of the subsequent injury. There is no difference between sailing the seas with a rudderless ship and traversing the highway with a rudderless mind. One knowing the situation, who can by care avert a collision and does not, is chargeable for the resulting loss, despite the uncontrolled character of the other's progress. Nashua etc. Co. v. Railroad,
The injury in this case arose because the defendants with their train and the deceased with her team both attempted to occupy at the same time a portion of a public highway which each had the right to use, but which neither had the right to occupy when it was in use by the other. Each was bound to such acts as would constitute care under the circumstances, to prevent an attempt at such joint occupation. While due care would ordinarily require that the wagon should wait and allow the train to go by, the failure to exercise such care and the negligent occupation of the crossing by the wagon gave the train no right to attempt to pass at the same time. State v. Railroad,
The situation is simply this: Both parties were proposing to *74 exercise a common right which could not be enjoyed by both at the same time; the defendants knew of the deceased's proposed use; the deceased did not know the defendants' purpose. If the deceased was in fault for not knowing the defendants' desire then to pass over the crossing, the defendants were in fault for attempting to cross while the path was in use. As the deceased's negligent occupation of the crossing did not increase the defendants' right to use it, they cannot recover of her for injury from their wrongful attempt, but must pay the damage done to her by their wrongful act. As her negligent act gave them no right to cross, it is immaterial in her suit for the injury whether her act of which they had notice was negligent or careful.
Exceptions overruled.
WALKER and YOUNG, JJ., concurred.
Dissenting Opinion
In discussing the questions involved in this case, it is important to keep in mind that the only theory upon which the case was submitted to the jury was that of the "last clear chance" doctrine, and that by thus restricting the scope of the inquiry the court in effect ruled that the jury must assume that the deceased was negligent in driving her horse upon the crossing at the time of the accident. That this is a correct interpretation of the situation as presented to the trial justice is disclosed by an examination of the decision in Gibson v. Railroad,
In Nashua etc. Co. v. Railroad,
The decision of the majority of the court in this case cannot be sustained upon the doctrine of last clear chance, when correctly stated and applied, but must look for its support to the doctrine of comparative negligence, or be assigned to the realm of willful injuries, in which negligence plays no part and with which it has nothing to do. This is readily appreciated when the facts relating to the negligent conduct of the parties are considered. From these facts it appears that after the train was less than 500 feet from the crossing, it was beyond the power of the engineer to stop it by the exercise of any degree of care; while after that time, the deceased by the exercise of ordinary care could have stopped her horse up to within six feet of the crossing and prevented the collision. Under such a state of facts, it is apparent that the deceased and not the railroad had the last clear chance to avoid the collision, and that the negligence of the engineer in not undertaking to stop the train before it reached a point less than 500 feet from the crossing was a mere condition upon which the subsequent negligent conduct of the deceased acted to produce the resulting injury. After the train was less than 500 feet from the crossing, the engineer was both physically and mentally unable to remove the danger which his *76
prior negligence had created. The train was then beyond his control. His situation, so far as an application of the law of negligence is concerned, was like that of the drunken man asleep upon the track, in Edgerly v. Railroad,
The motorman in the Edgerly case, had he been on the lookout and not negligently inattentive to his duties, could have seen the drunken man on the track, appreciated his condition, and when a sufficient distance away have stopped his car and avoided the accident. So the deceased in this case, had she not been negligently inattentive, could have seen the train approaching before she reached a point less than six feet from the crossing, have appreciated the fact that the train, going as it was at the rate of thirty-two miles an hour, could not be stopped before reaching the crossing, and have avoided a collision by stopping her horse. She had driven over the crossing many times. She knew that trains were liable to be passing over it, and it was her duty to be on the lookout, the same as it was the duty of the motorman in the Edgerly case. What she would have known and appreciated had she exercised care and been on the lookout, she is in the law of negligence held to know and appreciate. A person "can no more recover for an injury caused by driving into dangerous pit of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into a known pit." Nashua etc. Co. v. Railroad,
The difficulty we are now experiencing with the last clear chance doctrine is due to the fact that it has been misstated and misapplied in certain recent grade crossing cases. It was misstated in Gahagan v. Railroad,
In Gahagan v. Railroad, supra, 450, where the engineer saw the plaintiff going toward the track without observing the approaching train, it was said: "If the engineer knew or ought to have known that the plaintiff's negligence would place him upon the crossing when the train reached it, the engineer was equally bound to avoid the collision as if he saw the plaintiff actually on the track." *77
In Little v. Railroad, supra, 62, where the motorman saw the plaintiff approaching the track without observing the car and thought he was intending to cross, the above statement from Gahagan v. Railroad was applied, and it was said that the jury were warranted in finding "that the accident was due solely to the negligence of the defendants' motorman in not seasonably stopping the car after he saw the plaintiff turn his horses toward the track, apparently intending to cross in front of the car, and when he knew or ought to have known that the plaintiff's negligent purpose, if carried out, would place him upon the track when the car reached the place where he was crossing."
And in Yeaton v. Railroad, supra, 286, 287, where the fireman saw Yeaton approach the crossing without observing the train until he was within thirty feet of the track, and then, observing its approach, urge his horse forward upon the track, and where the question of negligence submitted to the jury was "whether the defendants' servants in charge of the train, observing the deceased's proximity to the railroad, did all they ought to have done to prevent the collision, after they knew or ought to have known of his attempt to cross the track," the court, relying upon the Gahagan and Little cases, held: "If men of ordinary prudence in the position of the defendants' servants would have known that Yeaton's act would place him upon the crossing at the time the train would reach it unless they did something to check the speed of the train, and could and would have avoided the collision, the failure of the trainmen to act with ordinary prudence was the legal cause of the injury. Upon the only ground of negligence charged against the defendants, Yeaton's conduct in attempting to cross under the circumstances, whether prudent or otherwise, was immaterial. . . . The defendants were not injured by the submission of the question of the plaintiff's care in attempting to cross the track, even if there were no evidence upon which it could be found that a man of ordinary prudence would have made the attempt."
These statements are clearly misleading, and are incorrect in so far as they convey the idea that the conduct of the defendants' servants in not stopping the train was the sole cause of the collision, if they knew or ought to have known that the plaintiff's negligent purpose if carried out would place him upon the track, and that the plaintiff's conduct after the defendants were or should have been so informed, whether prudent or otherwise, was immaterial, for the reason that the plaintiff's negligence did not cease to *78 be a contributing cause and become a mere condition until after the time arrived when the plaintiff was in a place of danger from which he could not extricate himself and avoid being injured by the exercise of due care. When that time arrived was question of fact; and evidence in support thereof should have been submitted before the jury could properly be instructed that the defendants' failure to learn of the plaintiff's presence and to avoid injuring him could be found to be the sole cause of his injury. The earliest moment at which the plaintiff's purpose to go into a place of danger was or should be known by the defendants is not the period from which their failure to act renders their conduct the sole cause; for until the plaintiff's purpose is executed, and he is in a position of danger from which he cannot escape by the exercise of due care, he may abandon his negligent purpose, remain out of danger, and thus avoid being injured. And so long as he can avoid injury by the exercise of care, his negligent failure to do so is a contributing cause. It can make no difference whether a person entertains a negligent purpose to go into a position of danger, which purpose he may abandon, or, being in a position of danger, negligently purposes to remain there, although he could abandon his purpose and move to a place of safety.
The latter supposition is the exact situation that was before the court for consideration in Shannon v. Railroad,
When the case of Little v. Railroad was before the court the second time (
As the evidence in the present case would not warrant a finding that the defendants had the last clear chance of avoiding the accident, and as the doctrine of comparative negligence is not a part of our law (Gregg v. Company,
I am authorized to say that Judge Peaslee concurs in this opinion. *80