123 A. 330 | N.H. | 1923
The cases were tried together. The jury found against Adelard, the driver of the motor cycle, and in favor of Eva, the passenger. They must therefore have found that both the defendant and Adelard were negligent and that despite Adelard's negligent driving of the car, the defendant's negligence was the proximate cause of Eva's injury. The jury were properly instructed that Adelard's negligence in driving should not be imputed to Eva. In other words, Eva, herself free from fault, was not debarred from recovery because Adelard's negligent driving contributed in some degree to cause the injury. The doctrine that the negligence of the driver of a vehicle does not prevent recovery by an innocent passenger applies where the injury results from the combined effect of the driver's negligence and the negligence of another. Noyes v. Boscawen,
The plaintiffs allege as grounds of negligence in the defendant, (1) excessive speed of the train; (2) failure to have automatic signals or a flagman at the crossing; (3) failure to stop the train in season to allow the motor to pass; (4) failure to give the statutory crossing signals.
The speed with which the train approached the crossing is estimated at between thirty and forty miles per hour. The run of the train was from Manchester to Lawrence 26 miles, the running time *51
59 minutes with eleven stops. The train was stopped at Canobie Lake station and scheduled to stop at Salem less than a mile beyond the crossing, which was one mile from Canobie Lake. At the whistling post a quarter of a mile before reaching the crossing it was the practice to shut off steam and drift into Salem. The train on this occasion was on time and was proceeding at its usual speed. The crossing as it was approached on the highway was in no way concealed or obscured from the view of a highway traveler. For at least seven hundred feet from the crossing the track was in open view from the highway. The highway travel was light at that hour of the day. There was nothing calling for special protection for this crossing or from which it could be concluded that operating this train in its usual manner over such a crossing in the manner disclosed in the evidence was a breach of the defendant's duty to exercise care for the benefit of travelers on the highway. The circumstances relied upon in Collins v. Hustis,
Because of the death of the engineer his account of the event is wanting, but it must be found that at some time he sounded the whistle and applied the emergency brake, but did not do so in season to stop the train before the crossing was reached. It was not the duty of the train engineer when he observed the motor approaching the crossing on the highway to stop and allow the cycle to pass. Because that could easily be stopped within a short distance, while the train could be brought to a standstill only with much greater trouble and delay, it was the duty of the highway traveler to stop and allow the train to pass. Gahagan v. Railroad,
The situation which caused the engineer to act when he did is not disclosed, but there is no evidence upon which he could be found negligent for failing to give precedence to the motor cycle.
The last contention to be considered is the claim that the statutory crossing signal was not given. To go to the jury on this question, the plaintiffs were bound to offer evidence tending to show disobedience of the statute, that such disobedience was a breach of a duty due them and that but for such disobedience the collision would not have occurred. Taylor v. Thomas,
The evidence from these witnesses, "clearly explainable on other grounds than the failure of the signals themselves, . . . amounts to no more than a scintilla which reasonable men could not consider sufficient to counterbalance the direct evidence of the fact." Collins v. Hustis,
In Tucker v. Railroad,
But if the contrary be assumed the question is, does the evidence authorize the finding that such failure if found was the proximate cause of the collision? What is the proximate cause of an injury is for the jury. Whether there is evidence from which the finding essential to the plaintiffs' case can be made is a question of law. Gage v. Railroad,
In Gahagan v. Railroad,
"It is a principle of law, applicable to the doctrine of proximate cause, that `if the original act was wrongful and would naturally according to the ordinary course of events prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause passing by those which are innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as a proximate cause, and not to that which is more remote.' Cooley on Torts, p. 76." Currier v. McKee,
But the maxim causa proxima non remota spectatur need not be invoked.
Whether the crossing signals were sounded or not, it cannot be found on all the evidence that Adelard approached the crossing in ignorance of the approach of the train. Knowing the train was coming, either because he looked and saw it just before he reached the crossing or because he saw it at Canobie Lake and observed its course substantially parallel to his own for nearly a mile, his attempt to cross when the train was actually on the crossing was the *57 sole cause of the collision. The evidence clearly establishes he could have prevented the collision either by stopping the cycle or diverting its course just before he struck the engine. As Adelard's act was the sole cause of the collision, it was the sole cause of Eva's injury as well as his own. It could not be found that if the crossing signals had been given, if they were not, that the collision would not have occurred. Because there was no evidence of defendant's fault as the cause of the injuries complained of, the defendant's motions for a verdict should have been granted.
The order in each case is
Defendant's exception sustained: verdict and judgment for the defendant.
SNOW, J., did not sit: PLUMMER, J, was absent: PEASLEE, J., concurred: YOUNG, J., concurred in the result.