Opinion
Decided March 6, 1928.
In case for negligence in the operation of a gate by a gateman at a highway grade crossing, the gateman having no reason to anticipate that plaintiff's intestate was approaching at a greater speed than the statutory ten miles per hour (P. L., c. 249, ss. 15, 16, 22) could not be deemed negligent for failing to sooner lower the gate in anticipation of an approach at a greater speed.
In such case, the gatekeeper having in view the approaching car and having to decide on the instant whether the driver of the car could stop it so as to avoid crashing into the gate, if lowered, or, if the gate was held up, the car could cross safely before an approaching train, the gateman's adoption of the latter course could not fairly be found to be negligent in view of the fact that, except for the time lost by stalling, the car would have been one hundred feet beyond the point where it collided on the crossing with a train.
The conduct of the gateman in such case after the car had become stalled on the track in front of an approaching train was insufficient to have justified a finding that he could have prevented a collision.
In such case, evidence that the train was approaching at its usual speed of about forty miles per hour was insufficient to support a conclusion that forty miles was an excessive or unusual rate or that the gateman was deceived thereby.
Under the rule requiring reasonable anticipation of the consequences of an act, it is not necessary that the alleged wrongdoer should have had reason to expect that his act would operate to cause injury in the exact way which occurred, but where the claim is that such conduct was likely to become operative to produce injury only upon the happening of some contingency there must be evidence of such a likelihood of the happening of that or of similar contingencies as would have impelled an ordinarily prudent man in the actor's position to take protective action to meet them.
Hence, certain inconsiderable variations of level on a grade crossing — four or five inches — there being no evidence that vehicles had ever before stalled at that crossing, afforded no sufficient basis for a finding that the gateman should reasonably have anticipated that such minor surface conditions were so likely to induce the stalling of cars without fault of the driver that the gatekeeper should for that reason have made an additional allowance of time for such a contingency when allowing a car-driver to attempt to cross in front of an approaching train.
ACTIONS ON THE CASE, to recover for the death of the plaintiffs' intestates, Alonzo M. Carlton and Jennie C. Parkman, caused by a collision December 25, 1925, between an automobile in which the deceased were riding and the defendant's passenger train, upon a grade crossing on West Central street in the city of Manchester. The two cases were tried together. At the close of the plaintiffs' evidence the defendant made a motion for a nonsuit in each case. The motions were granted and the plaintiffs excepted. Transferred by Burque, J.
West Central street runs east and west, and crosses at nearly a right angle the defendant's main line at a point several hundred feet north of the Manchester station. It also crosses Canal street easterly of the tracks at a point seventy-seven feet from the nearest rail, and heads the northerly terminus of Bedford street westerly of the tracks, the two latter streets being substantially parallel with the railroad at this point. The crossing consists of three tracks which, beginning at the east, are known as the north-bound track, the south-bound and the sidetrack; and is protected by gates operated by a tender stationed north thereof and between the south-bound track and the sidetrack. The easterly rail of the south-bound track is 18.7 feet, and the westerly rail thereof 23.4 feet west of the easterly gate, which in turn is 61 feet from Canal street.
Carlton was driving a four-cylinder Willys-Knight coupe going from his business office in Manchester to his home in Goffstown. Mrs. Parkman was a passenger. He came south on Canal street and, turning westerly onto West Central, was struck by the defendant's south-bound train at 8.41 o'clock in the evening. The train was due at the station at 8.42 o'clock, and on time.
Carlton was sixty-nine years of age, in good health and spirits, somewhat defective in hearing but possessed of good eyesight as corrected by glasses. He had driven a car four and a half to five years, was a good driver and knew what a car could or could not do. The car was in good mechanical condition. He had been accustomed nearly every night of business days for several years to take the course home which he was taking on the evening of accident.
It was a dark night. The vicinity of the crossing was lighted by two arc lights, one on Canal street and one on Bedford, at the intersection of these streets with West Central. The Bedford street light tended to blind a driver approaching from Canal street, but Carlton's car was equipped with a visor designed to shield the eyes from a dazzling light. The gateman and his movements were plainly visible, without a protecting eye-shield, to a witness standing upon the northerly sidewalk of West Central street somewhat over thirty feet easterly of the crossing.
The accident was observed by this witness, Milne by name, a pedestrian, who had crossed the tracks from the west and had reached the point indicated. He was called by the plaintiffs, and testified that when the car passed him it may have been going "ten or eleven, or maybe fifteen — no more" miles per hour; that it "might have been going any one of those speeds"; that it continued at the same speed until it was "about on" the south-bound track when it stalled; that it started and moved about a yard and stalled again "right on the [westerly] edge" of that track and there remained until the south-bound train struck the "hind end" of the car. The witness estimated that it was five or six seconds before the car started up after it was first stalled, and that about half that period elapsed after it started up again before it was hit by the train.
At the time when Milne came past the crossing-tender's shanty the gateman was then standing at the gate-control ready to lower the gates, and continued standing there facing east when the car passed the witness. When the car got upon the north-bound track the gates were slightly tipped but were moved no farther before the accident. While the car was stopped on the track the gateman, still standing at his post, "hollered." Later, Milne saw him on the other side of his shanty pick up his red lantern and wave it for the train to stop. He was then facing east and a bit to the north. When he started to swing his lantern the train was "close to the shanty," only a few feet away.
At some time while the car was stalled the first time, Milne, from his position about thirty feet east of the crossing, first saw the train, which was then about "four telegraph poles" from the crossing and appeared to him to be going "fast," "about forty miles" an hour, or "about as fast" as it usually does. Following the accident the train was brought to a stop with the rear end of the rear car opposite or slightly north of the gate-tender's shanty.
Other facts appear in the opinion.
Osgood Osgood (Mr. Anson G. Osgood orally), for the plaintiffs.
Warren, Howe Wilson (Mr. Howe orally), for the defendant.
It is the plaintiffs' primary contention that the gateman failed in' his duty to their intestates in permitting the car to enter upon the crossing in view of the proximity of the on-coming train. The question presented is whether the likelihood or probability of a collision was such that no person of ordinary prudence in the position of the gateman, in the situation there existing, would have permitted the car to enter upon the tracks when and as he did. Derosier v. Company, 81 N.H. 451, 459, 461, 463; Tullgren v. Company, 82 N.H. 268, 276, 277.
For the period of time which was allowed Carlton for the crossing we are wholly dependent upon the statement of Milne, who testified that the car proceeding at a continuing speed, which "may have been" "ten or eleven, or maybe fifteen" miles per hour, was stalled upon the easterly edge of the south-bound track for a period of five or six seconds, and again upon the westerly edge of that track for two and a half to three seconds when and where it was struck by the engine. It conclusively appears that except for the stallings of the car the accident would not have occurred. On the evidence most favorable to the plaintiffs, both as respects the speed (10 miles per hour) and the delay due to the stallings (7.5 seconds), the car, except for the time lost by such stallings, would have been somewhat more than one hundred feet past the point of collision on arrival of the train.
The only evidence offered of unusual conditions here bearing on the likelihood of cars stalling was the presence of a rise of four or five inches in the asphalt surface of the crossing between the tracks in one or two places and extending the width of the street. Opinions were given that differences in level have a tendency, by lowering the foot of an operator, to feed gas quickly and choke the motor and thus decrease the speed; and that a car is more likely to stall when going "slow." What was meant by "slow" is not defined. It is not to be inferred, however, that the witnesses meant that a speed of ten miles per hour was likely to induce stalling, and it could not be found on the evidence that the gateman should have anticipated a reduction of the speed of the car below that rate. On the other hand, it affirmatively appears that Carlton proceeded at a uniform speed of ten, eleven or fifteen miles per hour until the car stalled on the easterly edge of the south-bound track. The inconsiderable variations in level shown, in view of the absence of evidence that vehicles had ever before stalled or experienced any similar difficulty at this crossing, do not afford a sufficient basis for a finding that the gateman should reasonably have anticipated that it was so probable that such minor surface conditions would induce the stalling of cars without fault of the driver that he should for that reason have made a special or additional allowance of time for meeting such a contingency.
The plaintiffs urge, however, that, in addition to the time required to safely make the crossing under normal conditions, and apart from the defective conditions claimed, it was the gateman's duty to allow for a margin of safety for travelers to extricate themselves from peril in case of accidents which might befall their car while making a crossing; and argue that a variety of likely happenings might occur, such as (to use their illustrations) stalling, breaking an axle or rear-housing, or losing a wheel or tire; that it was not necessary that the gateman should have anticipated the precise danger or damage occasioned but only some danger or damage of a similar nature. It is true that, under the rule of reasonable anticipation, it is not necessary that the gateman should have had reason to anticipate that his alleged wrongful conduct should become operative to the deceased's injury in the exact way in which it did. Derosier v. Company, supra, 461, 462. When, however, as under the premise here assumed, the plaintiffs' sole claim is that such conduct was likely to become operative to produce their injury only upon the happening of some contingency, there must be evidence of such a likelihood of the happening of that contingency, or of similar contingencies, as would have impelled an ordinarily prudent man in the gateman's position to take protective action to meet it. Upon this point the plaintiffs must fail for want of proof. There was no evidence from which it could be found that cars had ever before stalled, or met with any of the enumerated or similar difficulties, upon this or any other crossing; or that this car, either with or without the knowledge of the defendant, had ever stalled at any time or place. Nor is there any merit in the argument advanced that the general likelihood of cars stalling was so far a matter of common knowledge that the jury could find that the gateman was chargeable therewith. If it be true as urged in argument that it is a common occurrence at highway crossings for cars to be stalled when they are obliged to slow down at the behest of an officer or for the purpose of safety, a comparable situation is not presented.
It is not necessary to decide whether, in view of the requirements of modern travel, a jury will be allowed to find that a reasonably prudent man in the position of the gateman under normal conditions might not have considered as an adequate allowance to make the crossing, a period which admitted, not only of safely crossing the tracks at a speed of ten miles per hour, but, while continuing at the same slow speed, of reaching a point more than one hundred feet beyond the danger line. Upon the question whether there was findable negligence in the conduct of the gateman here in failing to lower the gates, the situation in which he was placed by reason of the conduct and ostensible purpose of Carlton, as they must have appeared from the gateman's position, is an important factor.
P. L., c. 249, ss. 15, 16, 22, provide that municipalities shall place warning signs on every highway approaching railroad crossings at grade at a reasonable distance, of not less than three hundred feet, from such crossing; and require that the driver of an automobile passing such a sign shall, subject to penalty, reduce his speed to within ten miles per hour for the last one hundred feet before reaching the crossing. The evidence discloses the presence of such a sign on Canal street north of its junction with West Central, substantially three hundred feet from the nearest rail measured on the center lines of the roadways of said streets. If it be assumed that the roadway of Canal street is of the same width as that of West Central, this distance would appear to be two hundred ninety-nine feet and two inches. The width of the roadway of Canal street not being in evidence, it does not definitely appear whether or not the sign was the full required three hundred feet from the crossing. If, however, it be assumed that the city made such an inconsiderable mistake in the placement of the sign which ordinary observation would not disclose, neither the defendant nor its servants are chargeable with knowledge of such error. It follows that the gateman had no reason to anticipate the approach of a car from Canal street at a greater speed than ten miles an hour, and could not be found negligent because he failed to sooner lower the gates in anticipation of an approach at a greater speed.
It is conceded that Carlton came past this sign on Canal street and turned west on West Central at a point sixty-one feet from the nearest rail. His car proceeding at ten miles an hour could be stopped within a distance of twelve feet. For the adequate protection of a vehicle so approaching at lawful speed there appears to have been no occasion to lower the gates until after the car had entered upon the latter street. After the car entered West Central street so as to be fully within the gateman's view its front must have been within slightly more .than fifty feet from the gate. The car came upon Milne, only thirty feet from the crossing, "all at once" going at an indefinite speed, as he testified, of ten to fifteen miles an hour and continued on to the crossing with undiminished speed. The movement of the car so impressed the witness that he turned around to see "if he [Carlton] was going to go through the gates . . . if they were down." He thought that "something might happen out of the usual," that Carlton would "have to do some tall stopping." The gateman standing at the gate-control could plainly see all that Milne saw, and there is nothing to show that he should have had any different impression. He was charged with responsibility and the time for decision and action was short. There remained but three to four seconds for the gatekeeper to decide to act, and for the car to come to a stop to prevent its collision with the gates. Whether this could have been accomplished is at least doubtful. The evidence thus conclusively shows that the gateman was confronted by an emergency in which he had to choose between two courses of action, either one of which was fraught with possible danger to the deceased. He could lower the gates with the probability that the car would crash into them, or he could permit it to cross in advance of the train with what appeared to be, and what proved to be except for the unforeseeable stalling of the car, a safe margin. His adoption of the latter course under the circumstances was not fairly findable as negligent.
There is no claim that the enginemen could have seen the stalled car in season to have avoided the collision. But it is argued that after it became stalled the gateman, by the use of his red lantern, could have warned both the engineer and the occupants of the car so that the former could have reduced the speed of the train and the latter been given a longer time to act for their own safety. Here again the plaintiffs must fail for the want of evidence.
There is no evidence that the gateman saw Carlton's peril until he "hollered" to him. This verbal warning was given while the car was stalled on the track, or, to use the further language of the witness, "as the train approached the automobile." This evidence tends to show that this was during the period of the last stalling. It was then manifestly too late for the gateman to effect a rescue. Bursiel v. Railroad, 82 N.H. 363, 370, 371, and cases cited. If, however, it could be found that the gateman's verbal warning was given while the car was first stalled, the evidence would not support a finding' that he could then have prevented the accident. The gateman, beside keeping track of the train and moving his gates, had a duty to watch both approaches to the crossing as well as travelers in the act of crossing. When the car passed the witness the gateman was still at his post and facing east, and, as the car got upon the north-bound track, the east gates were tipped slightly. When he "hollered" he was still standing at the gate-control and was next observed upon the opposite or east side of his shanty, where he was seen by Milne to pick up a red lantern and wave it for the train to stop, which the witness describes as "a kind of a swing around about three times quick." The train was then "close to the shanty" and only a few feet away. An appreciable period of time was required to register upon the mind of the gateman the peril of Carlton, and for him to decide upon his course of action. Some time was necessarily consumed in giving the verbal warning. There was no evidence of the time required for the tender to leave his place at the gate-control, go to the other side of his shanty and secure and wave his lantern. Time was likewise required to register the signal on the mind of the engineer and for an effective application of the brakes. There was an absence of evidence as to the distance in which the train could have been brought to a stop, except so far as it may be inferred from the fact that the train stopped, on the signal given, with the rear car of the train upon the crossing. Therefore, if it could be found that the gateman saw the car during the period of the first stalling, in the absence of more explicit evidence, it would have been mere conjecture for the jury to find that he would have been able, by means of his lantern signal, operating through the enginemen, to have prevented the collision. Nor does the evidence warrant a finding that the deceased would have observed an earlier signal and left their car in season to save themselves. If the deceased saw the on-coming train the signal would have told them nothing which they did not know. If they did not see the train it is merely conjectural to say that they would have observed a lantern signal and, observing it, have abandoned their car. Collette v. Railroad, ante, 210.
There was an absence of evidence whether the windows of the car were open or closed. In view of the season and the time of day the latter is at least as probable. Carlton's hearing was defective. It would, therefore, be likewise conjectural that an earlier, or a continued, verbal warning would both have reached the occupants of the car and have impelled them to greater, or to a different kind of, protective action than they took.
The claim that negligence of the defendant can be predicated upon an excessive speed of the train operating to the deception of the gateman is not well founded. The only evidence of the speed of the train was by Milne, who says he "glanced up" the track from a position 30 feet from the crossing and saw the train "as much as four poles" away, "coming towards me — looked to be going at a great speed," "about forty miles" per hour, or as he further states "about as fast as it usually does." This testimony does not support findings either that forty miles an hour was an excessive or an unusual rate, or that the gateman was deceived thereby.
Other exceptions shown by the record have not been argued and are understood to be waived.
Exceptions overruled.
All concurred.