99 A. 649 | N.H. | 1916
"Section 1. If any person shall without right enter upon or remain in any right of way, tracks, yard, station ground, bridge, depot, or other building of any railroad, when notice has been posted forbidding such trespass, he may be fined not exceeding twenty dollars; and no right to enter or be upon any railroad track shall be implied from custom or user however long continued.
"Sect. 2. If any person shall be injured while engaged in any act prohibited by section 1 of this act, neither he nor his executor or administrator shall have any cause of action against the railroad company for damages arising from such injury unless the injuries are occasioned by the willful or gross negligence of the railroad or its employees." Laws 1899, c. 75. The application of the act to the plaintiff's cause of action is not disputed. Her only ground of recovery is that her injuries were "occasioned by the willful or gross negligence of the railroad or its employees" within the meaning of the legislature. The only question discussed is as to the meaning of the words "willful or gross negligence."
The question of the plaintiff's care was taken out of the case by the instruction that there was no evidence she was careless. The only question presented by the failure to give the requested instruction and the special exception to the charge is whether, under certain circumstances, lack of ordinary care as matter of law constitutes wilful or gross negligence. This does not raise the question whether under the circumstances Crowe might not have been found guilty of wilful or gross negligence, a question which was plainly submitted to the jury, but asks for the determination of the question as matter of law. Negligence is a question of fact. This proposition has been adhered to despite strenuous effort to have certain acts, or the failure to act under certain circumstances, declared negligence as matter of law. Gahagan v. Railroad,
Words in a statute are to be construed according to the common and approved usage of the language unless they have acquired a peculiar and appropriate meaning in the law. Opinion of the Justices,
Exceptions overruled.
All concurred.