310 Mass. 45 | Mass. | 1941
These are actions for personal injuries sustained by Ann Peterson and Nancy Peterson and for personal injuries and deaths of Edward Peterson and Ruth C. Peterson, all resulting from a collision on July 27, 1935, between a freight train of the defendant and an automobile driven by Ruth C. Peterson, in which the other persons named
Ann, Nancy, and Edward were all minor children of Ruth. The accident happened at about 12:30 p.m. There was uncontradicted evidence that the day was fair.
In answer to special questions the jury found that the defendant maintained warning signs at the crossing (see N. H. Pub. Laws [1926] c. 249, §§ 13-21); that it caused two long and two short whistles to be given within eighty rods of the crossing and caused the engine bell to ring until the engine had passed the crossing (see N. H. Pub. Laws [1926] c. 249, § 23); and that the speed of the train exceeded twenty-five miles per hour. In each case the jury found generally for the plaintiff on a count alleging broadly that the injury (and the death, in the cases where death occurred) was caused by negligence of the defendant, and in each case found for the defendant on a second count alleging failure to provide a suitable crossing, failure to maintain warning signs, and failure to whistle and ring the bell.
Underlying all other issues is the question whether a verdict should have been directed for the defendant on the first count in each case on the ground that as matter of law there was no evidence that negligence of the defendant contributed to cause the accident. In determining this question we are bound by the law of New Hampshire in so far as that law establishes the standard of care. If by rule of law in New Hampshire a given set of facts does or does not constitute negligence we are bound by that rule as to that set of facts. Smith v. Brown, 302 Mass. 432, 433. Stiles v. Wright, 308 Mass. 326, 330. But where the law of New Hampshire goes no further than to lay down the general standard of the care of the average prudent man under the circumstances, while we are bound to observe that standard, we must determine for ourselves in accordance with our own law of procedure whether there is sufficient evidence to take the case to the jury on the question whether the defendant conformed to the standard. Am. Law Inst. Restatement: Conflict of Laws, § 595, comment b. United,
Various items of evidence are put forward by the plaintiffs as sufficient to support a finding of the defendant’s negligence. In our opinion they do not either separately or together support such finding. We proceed to consider them.
The plaintiffs’ contention that the defendant’s cross arm sign was not maintained in accordance with the provisions of N. H. Pub. Laws (1926) c. 249, §§ 13, 14, is based, we think, upon the mistaken belief that § 16 of the same chapter refers to the same signs to which §§13 and 14 refer. That this is not so seems clear from c. 4 of the Laws of 1915 and c. 88 of the Laws of 1917. There was no evidence of violation of law in the maintenance of the cross arm sign.
But it is further contended that there was evidence of negligence in that under the circumstances the defendant should have provided some additional and more effective warning than was furnished by the signs, the whistle and the engine bell, and in this connection may be considered evidence that the cross arm sign to which reference has already been made and which was located on a post on the easterly side of the crossing at Mrs. Peterson’s right as she approached the crossing from the southeast and about
In view of the location and character of the crossing, the meager and indefinite evidence of the importance or extent of use of either the road or the railroad and of the continuous view which a traveller approaching as Mrs. Peterson did would necessarily have of any train approaching as did the train involved in this accident, we are of opinion that there is no evidence in this record to support a finding that the crossing was one of peculiar danger to persons approaching as she did, and that it could not reasonably be inferred that the defendant, having complied with all statutory requirements as to warnings, was under any obligation to her and her companions to provide further special protection at this point. Commonwealth v. Boston & Worcester Railroad, 101 Mass. 201. Bailey v. New Haven & Northampton Co. 107 Mass. 496. Hubbard v. Boston & Albany Railroad, 162 Mass. 132, 135, 136. Giacomo v. New York, New Haven & Hartford Railroad, 196 Mass. 192, 194. Chase v. New York
We have preferred to deal with the contention that the defendant was negligent in not providing additional protection at the crossing as if that contention were fully open to the plaintiffs notwithstanding the verdicts for the defendant on the second counts and notwithstanding an instruction by the court, to which no exception was taken, and which therefore, so far as it went, became the law of the trial, that there was no evidence that the crossing “was not a suitable crossing within the meaning of” N. H. Pub. Laws (1926) c. 249, § 1. See Tompkins v. Quaker Oats Co. 239 Mass. 147, 151; Horton v. North Attleborough, 302 Mass. 137, 141.
Next it is contended that there was evidence of the defendant’s negligence in the speed at which the train was operated. Members of the train crew estimated the speed as the train approached the crossing at “about twenty or twenty-two miles an hour” and “about twenty-five miles an hour.” An observer from a neighboring house judged it to be “about twenty to twenty-five miles an hour.” The
But it was agreed by the parties that the defendant had a rule governing the conduct of employees, including engineers on the North Weare Branch, “that the maximum speed at which a freight train should be run was twenty-five miles an hour,” and the plaintiffs argue that since the jury has found that the speed of the train as it approached the crossing exceeded twenty-five miles an hour there is evidence of negligence in the breach of this rule. The effect of breach of rules made by an employer for the guidance of his employees in the conduct of his business as evidence of negligence in an action by a third person was fully discussed and settled in Stevens v. Boston Elevated Railway, 184 Mass. 476. It was there held that such breach is evidence of negligence where the rule has been adopted by the defendant “in reference to the safety of third persons.” 184 Mass. at page 478. See also page 479. And on page 480 the reason for the rule is stated in these words, “Against the proprietor of a business, the methods which he adopts for the protection of others are some evidence of what he thinks necessary or proper to insure their safety.” It follows that only a plaintiff belonging to a class of persons in reference to whose safety a rule has been adopted can rely upon breach of that rule as evidence of negligence. Not every disobedience of internal regulations between employer and employee will supply evidence of negligence in favor of a third person. So far as we are aware this distinction has been consistently observed. See Wigmore on Evidence (3d ed.) § 282; Gerry v. New York, New Haven & Hartford Railroad, 194 Mass. 35, 37; Crowley v. Boston Elevated Railway, 204 Mass. 241, 248; McGlauflin v. Boston & Maine Railroad, 230 Mass. 431; Boston & Maine Railroad v.
We do not see how the defendant’s rule can be assumed to have been established for the protection of the public at grade crossings so as to be deemed an admission by the defendant that speeds in excess of twenty-five miles an hour at such crossings are inherently dangerous to travellers on the highway. The rule does not purport to regulate speed at crossings as distinguished from other points. The rule applies only to freight trains. It is common knowledge that passenger trains, if not trains of other kinds, habitually traverse grade crossings at far higher speeds than twenty-five miles an hour. The rapid transit demanded by the public could not be furnished if they did not do so. It is at least as reasonable to suppose that the rule was established with reference to the safety of the freight trains themselves at all places, or with reference to operating conditions of some kind peculiar to freight trains, as it is to suppose that this was a measure directed to the protection of travellers upon the highways at grade crossings. Under the principle of the Stevens case no foundation has been laid for the contention that violation of the rule was evidence of negligence in favor of these plaintiffs.
Finally the contention is advanced that there was evidence of negligence of the engineer in failing to stop his train when he could see the Peterson automobile proceeding toward the crossing. But it is settled that in the situation here presented the driver of a locomotive, in the absence of any indication to the contrary, may anticipate that the driver of a vehicle upon a highway will stop before entering upon a crossing in front of a train. The engineer is not required to stop his train whenever he sees a traveller upon the highway. Gannett v. Boston & Maine Railroad, 238 Mass. 125, 131. Tamkun v. Boston & Maine Railroad, 302 Mass. 59, 62. Gahagan v. Boston & Maine Railroad, 70 N. H. 441, 451. Waldron v. Boston & Maine Railroad, 71 N. H. 362, 365, 366. Morier v. Hines, 81 N. H. 48, 51. Paulette v. Boston & Maine Railroad, 88 N. H. 10, 12.
In each case the entry will be
Exceptions sustained.
Judgment for the defendant.