88 A. 995 | N.H. | 1913
The liability for careless injury of a person incapable of taking care because of his youth, or mental or physical condition (Dorr v. Railway,
In Brown v. Railroad,
But in the present case there is no such evidence. It is practically admitted in argument that there is no evidence of the deceased's care, unless there was error in the exclusion of the offered evidence that the deceased had the habit of looking and listening before stepping upon or walking along a railroad track, for the purpose of discovering whether or not a train was in his vicinity. Evidence of this character has been admitted to show whether a person did or did not do a particular act at the time in question, upon the ground that a person is more apt to do a thing in the manner in which he was in the habit of doing it. It is not admissible to show general character for carefulness. Greenwood v. Railroad, ante, 101; Parkinson v. Railroad,
The rules of the railroad which were excluded do not appear to, apply to the evidence. They appear to be running rules for the management of trains. If they have any bearing upon the defendants' negligence, there is no ground upon which it can be assumed that these rules, with which the station agent was unfamiliar, were known to and relied upon by the deceased.
In his brief, the plaintiff claims that the trial proceeded upon the theory that the defendants were liable under the doctrine of the last clear chance. But here, also, the question is decided against him. The ground of negligence in the defendants, assuming that they were negligent, is their failure to observe, or take sufficient, measures to observe, Chabott's presence upon the track. Upon, the evidence, it is clear that the trainmen, if they were on the watch, could have seen him at any time after the train came through the, mill gate. It is equally clear that he could have seen the train if he had looked. After the time when the trainmen could have prevented the injury by stopping the train or warning the deceased of its approach, he, if observant, could have prevented the accident by stepping from the track. If the doctrine invoked had any application when both parties, present and acting, are unconscious of the danger until too late to prevent injury, the deceased and not the *138
trainmen would be responsible therefor; for he could have prevented the accident by leaving the track after it was too late for the trainmen to do anything to save him. The case is not distinguishable from Batchelder v. Railroad,
None of the exceptions suggested applies to the present case. The deceased was suffering from no incapacity. No disability on his part is suggested in the testimony of either of the witnesses who saw him just before and at the time he was struck. It is not shown that the defendants possessed superior knowledge concerning the pending danger. If it could be found that the defendants ought to have anticipated the presence of the deceased on the track and that they ought to have been watchful for his safety, it must also be found that the same standard of care, applied to the deceased, required him to anticipate the approach of trains over the track and be watchful for his own safety.
There is nothing in Cavanaugh v. Railroad,
Exceptions overruled.
All concurred.