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crossing is bound to exercise care commensurate with the danger of the situation, and that, where the evidence discloses without question or conflict that no care whaterer was exercised, there is no question for submission to the jury, while the latter, overruling Huntress v. Railroad, 66 N. H. 185, 3+ Atl. 154, 49 Am. St. Rep. 600, holds that, in the absence of all evidence, the burden of proof resting upon the plaintiff to show care cannot be supplied by any presumption resting upon the general desire of life or fear of injury.

That certain acts, such as the failure to look or listen upon approaching a railroad crossing, conclusively establish negligence as a part of the cause of an injury, has been repeatedly argued without success in negligence cases. In Gahagan v. Railroad it was said: “An exact definition of care and negligence establishing what acts are careful and what acts or omissions are careless at all times, in all places, and under all circumstances, would be a great convenience in judicial administration; but, unless the rule that due care is the care of the ordiDarily prudent person under all the circumstances is abrogated, it can never be said logically that the mere presence or absence of certain evidentiary facts will always determine the question without reference to other facts appearing in particular cases." Gabagan v. Railroad, 70 N. H. 441, 445, 50 Atl. 146, 55 L. R. A. 426; Smith v. Railroad, 70 N. H. 53, 88, 47 Atl. 290, 85 Am. St. Rep. 596; Roberts v. Railroad, 69 N. H. 354, 45 Atl. 94; Davis v. Railroad, 68 N. H. 247, 249, 250, 44 Atl. 388. Without a departure from the fundamental principles of the law of negligence as understood in this jurisdiction, it cannot be held that the fact that the party injured in a railroad crossing collision went upon the track knowing a train was approaching conclusively establishes his negligence, regardless of all other evidence in the case. "Decisions are to be found wherein such a doctrine has been upheld in other jurisdictions, but they proceed upon a theory so at variance with the law of negligence in this jurisdiction as to be of little value here. The rule in this state is that each case is to be determined in the light of its own circumstances.”

Bass V. Railway, 70 N. H. 170, 172, 46 Atl. 1056.

The apparent conflict of the cases cited by the defendants results mainly from the method of statement. In State v. Railroad, 76 Me. 357, 49 Am. Rep. 622, a case particularly relied upon, it is said: "One in full possession of his faculties who undertakes to cross a railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be but is in fact struck by it, is prima facie guilty of negligence; and, in the absence of a satisfactory excuse, his negligence must be regarded as established.”

This appears

in this state: That the plaintiff cannot recover without offering evidence from which his conduct, whatever it was, can reasonably be found to have been prudent. The real ground of the decisions in other jurisdictions, which have been cited, appears to have been that there was nothing in the evidence in the particular cases justifying the conduct of the party injured. If this be the true meaning of the cases, they are not in conflict in principle with the law of this jurisdiction. If it is not, they cannot be followed here. Perhaps it cannot be fairly said that the defendants' position is as broad as above stated, or as might be inferred from the selections from various authorities quoted in brief and argument. The position stated in the brief is that “it could not reasonably be found from the evidence that the deceased exercised due care for his own safety.” This requires a consideration of the evidence.

It is conceded, as already stated, that Stearns attempted to cross the track knowing that a train was approaching. There was evidence that at his rate of travel after discovering the train he would have crossed in safety in advance of the train if its speed had not exceeded 25 miles per hour, but he was struck by the train because its speed exceeded 50 miles an hour. The causes of the injury were, therefore, in this view of the evidence, the speed of the train, conceded under the circumstances of the case to warrant the conclusion the defendants were neg. ligent, and Stearns' decision to cross, made upon seeing the train. As there was no evidence Stearns intended to commit suicide, it could be found he made the attempt because of a mistake as to the speed of the train. There was evidence from which it is claimed that Stearns may have reasonably understood that the approaching train was the milk train, which stopped at the South Danbury station, and the speed of which while slowing down for the stop would be much less than 25 miles per hour. The train was, however, a freight, over an hour behind time, running about 10 minutes in advance of the regular time of the milk train. Whether Stearns understood the train to be the milk train or recognized it as a freight it is claimed is mere speculation; but assuming he knew, or must be held to have known, the train was a freight, it does not follow he must be charged with knowledge of its excessive speed. The regular speed of this freight at this point, according to the time-card, was a fraction over 22 miles an hour, and the rules of the road prohibited the running of freight trains over 25 miles an hour. Another rule required a long blast of the whistle upon approaching stations at which no stop was to be made. There was evidence that this whistle was omitted, or not properly given. There was no direct evidence that Stearns was acquaintthis particular freight pass at about this hour; but it appeared that he had been driving to this train with milk for four years, and that occasionally a freight would pass ahead of the milk train. It is to be presumed the defendant's road is operated in accordance with the rules, and it could be inferred that Stearns, by observation during his four years' attendance, had become acquainted with the customary manner of moving trains. In the absence of evidence that the defendants' employés were accustomed to run freight trains, or this train at this place, in violation of the rules of the road, it might reasonably be found that Stearns knew the time it took the train, as it should be and was customarily run, to reach the crossing, even if he was not led to believe by the absence of the station whistle that it would slow down for a stop, and, being aware of the speed of his team, judged there was time for him to cross-a conclusion which would have been correct except for the unusual speed of the train. There was also evidence that one of his horses was somewhat afraid of the cars. This fact, though not controlling, is evidence to be considered with the other facts in the case upon the question whether a man of ordinary prudence, placed in the situation Stearns was, with the knowledge he had or ought to have had, would have done as he did. As there was evidence tending to establish a belief in his mind that the train speed did not exceed 25 miles an hour, that question, if material, could not be taken from the jury. Nor can it be said that there was no evidence tending to show that the ordinary man would not have acted as Stearns did, in the face of the evidence that, upon the facts as it might be found he understood them, the course he pursued was safe. It is not the fact that prudent persons do not cross a railroad track when they know a train is approaching. To do so may be safe or dangerous. “No inflexible rule can be laid down as to the distance before a moving train within which it is safe to attempt a crossing. It will depend upon the rate of speed at which the train is moving and the condition of the person. Each case, therefore must measurably depend upon its own facts." State v. Railroad, 69 Md. 339, 14 Atl. 685, 688. It is urged that, although Stearns looked at and saw the train when he was 57 feet from the crossing, he did not again look toward the train until just as the engine was upon him. Whether a person of ordinary prudence, having reached the conclusion that his prudent course was to drive over the track, would then have given his whole attention to carrying out the course he had decided upon, or would have diverted his attention from his team, is a question of fact. “We have to deal with man as we find him. When we get information that fixes upon our minds an

ists, we act upon that impression. We satisfy ourselves that we are right, and then go ahead. At least ordinarily prudent men do tbis. Dr. Gratiot (the plaintiff) saw an engine half a mile away that he supposed was on a switch, and, of course, not approaching him at all. He accepted this as a fact and acted on it; and there would be no more reason in requiring him to look constantly up the track to learn whether he was mistaken about this supposed fact than to require men in their multitudinous affairs to hesitate at every step and question not only the correctness of their judgment, but even the truth or falsity of what seem to be the facts that surround them. It would be a great boon to humanity if no mistakes could occur; but to require men to hesitate to act upon what seems manifest to their eyes and ears, simply because it is possible that they may not have seen and heard the fact as it is, would virtually stop business and commerce." Gratiot v. Railroad, 116 Mo. 450, 21 S. W. 1094, 16 L. R. A. 189; Bonnell v. Railroad, 39 N. J. Law, 189.

It has been held in several cases that the reliance of the engineer upon the assumption that a person whom he sees approaching a crossing at a distance will stop and allow the train to go by is not even evidence of negligence; and it can hardly be held that the highway traveler's assumption that the railroad employés are not approaching the crossing with a reckless disregard of its dangers, in the absence of evidence of such fact, is conclusive evidence of negligence in the traveler. There was no error in the denial of the motions for à nonsuit and verdict. But, although reasonable men might on the evidence have found Stearns' conduct careful, they might also have found it careless. The plaintiff claimed that if Stearns was negligent in attempting to cross the track, and thereby got himself into a position of danger from which he could not extricate himself, yet the defendants' servants in charge of the train in the exercise of due care ought to have seen him in season to have slackened the speed of the train and averted the accident. The defendants excepted to the submission to the jury of the question whether the defendants could have prevented the collision after seeing Stearns in a place of danger. The defendants concede as a matter of law that if the trainmen, after they discovered or ought to have discovered the danger, could with the facilities at their command have prevented the injury by due care, the defendants are liable. Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Yeaton v. Railroad, 73 N. H. 285, 61 Atl. 522. The ground of the exception is that no evidence was produced before the jury upon which it could be found that the speed of the train could have been so slackened as to prevent the injury after the peril became apparent. Stearns saw the train

bis team, and attempted to cross. It was at no evidence that this was not done, or that this point be came in sight of the train, and anything else could have been done. The the trainmen, if observant, could and should only ground for controversy was when it have discovered his attempt to cross. At this was done; and the only ground for negli. time the train was about at the underpass; gence in this respect that this action was one witness placing the engine just north of not taken as soon as it should have been. It, so that the greatest distance of the train Whether the brakes were applied before the from the crossing upon any evidence in the station was reached, as the trainmen testicase was 435 feet. The witness Chase testi- fied, or at the time of or just after the colfied that with the brakes in working order lision, as evidence offered by the plaintiff the train could bave been stopped in 300 to had some tendency to establish, it was there330 feet, if the speed did not exceed 25 miles fore demonstrated that, with the brakes in an hour. If the jury believed the testimony the condition in which they were and the of the trainmen that the speed did not ex. speed of the train as it actually was, the ceed 25 miles an hour, and that of the plain- length of the train (1,400 feet) was required tiff's expert Chase, and found that the brakes to bring the train to a stop. were in working order, they could have It is suggested that, on the evidence as found that after the trainmen knew or ought to the distance within which the train was to have known of Stearns' attempt to cross stopped, the expert evidence, and the failthey could have stopped the train before it ure to show an inspection of the brakes aftreached the crossing. But this would not au- er the accident, it could be found the brakes thorize a verdict for the plaintiff, because were not in working order, and that their both parties concede, and the fact is amply failure to work was the reason the train apparent, that in such case no injury could did not stop in a less distance. This may have resulted from a failure to apply the

be so.

But the fact that the brakes were brakes, because Stearns, if the train was at out of order tends to show, not that the or above the underpass when he started up train could have been more promptly stopped, his team, must have passed the crossing and but relieves the trainmen from the charge reached a place of safety before the train of negligence in not making a stop within reached the crossing, if its speed did not less distance. As the trainmen could not exceed 25 miles an hour. Stearns was driv- have stopped the train by applying the brakes ing at a slow speed, estimated at 4 miles when the train was at the underpass, if an hour, until he observed the train, when tbey ought to have recognized Stearns' peril be started up his horses into a 10-mile gait. at that point, it is immaterial that they did If bis speed after he attempted to cross av. not do so until the train was nearer the eraged only 7 miles an hour, or 10 feet per crossing. The only answer suggested to this second, in 8 seconds he would have traveled reasoning is that, though the train could 80 feet, passed over the crossing, and reached not have been stopped before reaching the a place of safety. During the same length of crossing, its speed could have been slackened time the train at 25 miles per hour, or 3613 and time allowed Stearns to cross. In Yeafeet per second, would have traveled 290 ton v. Railroad, 73 N. H. 285, 61 Atl. 522, feet, or less than the least distance in which and in Duggan v. Railroad, 74 N. H. 250, the witness Chase estimates it could have 66 Atl. 829, there was evidence that, if the been stopped. But the train and Stearns' brakes had been applied, there would have team met on the crossing. Therefore eitler been no accident, even if the train was not the train was much nearer the crossing or stopped. In Folsom v. Railroad, 68 N. H. proceeding at much greater speed, or the de- 454, 33 Atl. 203, the evidence was that less fendants' experts were right and the plain- than six inches of the back of the deceased's tiff's wrong as to the distance within which

sleigh was within the zone of danger when the train could be stopped.

the train reached it. It was apparent that, Whatever view of the facts is taken, it if the speed of the train had been a tenth cannot reasonably be found that failure to of a second less, there would have been no stop the train after Stearns' peril became ap- accident. In this case the enginę struck the parent was the negligent cause for the in- rear quarters of the horses. To have prejury, upon evidence that the only situation vented the accident, the train must bave in which the train could have been stopped been delayed so that the wagon in which must have been one from which no injury Stearns was riding could have entered upon would have resulted. But the evidence of the track, crossed it, and passed beyond the the experts on both sides as to the distance overhang of the engine before the crossing within which the train could be stopped was was reached by it. Although the time necmerely opinion, and was founded upon the essary for Stearns to have reached a posiproper working of the brakes. The defend- tion of safety may be estimated from the ants' evidence was that when the fireman, evidence, and there was conflicting evidence observing that Stearns was attempting to as to the distance within which the train cross, called “Whoa," the engineer pulled could be brought to a stop when running at the brake into the emergency position and 25 or 50 miles an hour, there was no evi. applied the sand, and that that was all that dence of the time within which either opera

train. The trainmen's negligence before Stearns bad created the danger by his neg. ligence could not be held a failure to save him from the results of his own want of care.

The failure to whistle at this time as a cause of the injury stands on the same ground, with the further objection that the purpose of the whistle is to give notice of the approach of the train, of which it is conceded Stearns was aware in season to protect himself. After he attempted to cross with knowledge of the approaching train, and was engaged in the attempt, there is no evidence further signaling by the whistle, if there was opportunity for it, would have stopped Stearns' team or prevented the injury.

There is no occasion to consider the remaining exceptions. The exceptions to the denial of the motions for a nonsuit and verdict are overruled. The exception to the submission of the second issue to the jury is sustained.

Verdict set aside. New trial granted.

any evidence of the action of the brakes in checking the speed of the train.

The plaintiff appears to suggest in argument that the application of the brakes results in a decrease of speed directly proportionate to the distance traversed. The witness Clark testified that a train running 25 miles an hour could be stopped in 300 to 330 feet, if running 40 to 50 miles, in 1,300 to 1,400 feet, from which it can be argued that the rate at which the speed diminished increases with the distance traversed; for it would seem to follow that with the brakes set when the speed was diminished to 25 miles an hour 350 feet more would bring the train to a standstill, and that it would therefore require at least 950 to 1,050 feet to reduce the speed from 50 to 25 miles. This may not be so. The action may be just the other way, more effective at first and having a less retarding effect for some reason or other the longer the distance traveled, or the retarding effect may be exactly proportional to the distance. However this may be, the action of a train under application of the brakes is not a matter of common knowledge. There was no evidence before the jury tending to show that the trainmen could have checked the speed of the train sufficiently to have permitted Stearns to cross in safety. A conclusion that an earlier application of the brakes, at any time after Stearns had created the danger by his negligence, would have prevented the injury, would have been mere conjecture founded on no evidence. The question was improperly submitted to the jury, because there was no evidence upon which it could be determined in the plaintiff's favor.

There was evidence that one Woodward, who saw Stearns when he turned into the passageway, stood on the station platform and waved his arms across the track, motioning to Stearns to stop; and it is claimed that the train was then opposite Langley's house 800 feet away, and that Woodward's motions, though not intended as a signal to the train to stop, should have been seen and so interpreted by the engineer, and that at that distance the train could have been stopped or the speed slackened sufficiently to have prevented the injury. It does not seem reasonable to convict the engineer of negligence because he did not understand a signal for Stearns as one for him. But, hayever that may be, if the engineer was neg. ligent at this time, it was before Stearns imprudently attempted to cross, and at a time when, if he had seen Stearns, he might have properly assumed Stearns would stop and permit the train to go by. Except for Stearns' starting up his team, the engine would not have collided with the team. The only collision possible would have been between Stearns' horses and the side of the

(75 N. H. 52) THEOBALD V. SHEPARD BROS (Supreme Court of New Hampshire. Merri.

mack. Oct. 6, 1908.) 1. TRIAL (§ 232*)-INSTRUCTIONS-SUFFICIENCY OF EVIDENCE.

In an action for compensation for moving a building, if there was no evidence tending to show that defendants agreed to assume responsibility for injuries to plaintiff's workmen from his negligence, it was proper to instruct that the evidence would not warrant such a find. ing.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $8 596-612; Dec. Dig. § 252.*] 2. WORK AND LABOR ( 28*) – EVIDENCESUFFICIENCY.

In quantum meruit for services in moring a building under a special contract, the evidence held insuflicient to show an agreement by defendants to assume responsibility for injuries to plaintiff's workmen caused by his negligence.

[Ed. Note.-For other cases, see Work and Labor, Dec. Dig. § 28.*] 3. APPEAL AND ERROR ($ 1001*)-REVIEW

QUESTIONS OF FACT-SUFFICIENCY OF EviDENCE.

A finding as to the meaning and construction of testimony must be based upon a reasonable understanding of it, and a finding will not be permitted which is reached by giving testimony, an arbitrary or unreasonable meaning.

[Ed. Note.-For other cases, see Appeal and Error, Cent, Dig. § 3930; Dec. Dig. $ 1001.*] 4. APPEAL AND ERROR ($ 1001*) — REVIEW

QUESTIONS OF FACT-SUFFICIENCY OF EVIDENCE.

A bare scintilla of evidence will not support a finding or verdict, but there must be substantial evidence having a reasonable tendency to establish it.

(Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. $83928–3934; Dec. Dig. & 1001.*]

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5. TRIAL ($ 142*)-QUESTION FOR JURY-PRELIMINARY QUESTION FOR COUrt.

Whether evidence offered to establish a fact has a logical and reasonable tendency to do so is a preliminary question for the court, and if it can see that men, considering the evidence as jurors are bound to do, may find that it proves such fact, the court must then submit the evidence to the jury, but if it appears that they could only reach such a conclusion by conjecture or speculation, the evidence should be excluded.

[Ed. Note.-For_other cases, see Trial, Cent. Dig. $ 337; Dec. Dig. $ 142.*] 6. WORK AND Labor ($ 30*)-INSTRUCTIONSAMOUNT OF COMPENSATION.

In quantum meruit for services in moving a building under a special contract, if, in the absence of a special agreement, the owner would be liable for damages to the public caused by moving tbe building along the street, an instruction that if the contractor never understood the owner relieved him from responsibility for injuries to the workmen by his negligence, the responsibility still rested upon the contractor, did not warrant an inference by the jury that the amount of the contractor's compensation would be enhanced thereby.

(Ed. Note. For other cases, see Work and Labor, Dec. Dig. $ 30.*] 7. WITNESSES ($ 406*)–CONTRADICTION-COMPETENCY OF CONTRADICTORY EVIDENCE.

In an action for services in moving a build. ing. where plaintiff had testified that another who was employed therefor could not move it, but did not testify why he failed, evidence by defendants that the former contractor did not move the building because he became sick did not contradict plaintiff's evidence, and was inadmissible.

(Ed. Note.-For other cases, see Witnesses, Cent. Dig. $ 1277; Dec. Dig. & 406.*] 8. APPEAL AND ERROR_(8 971*)-REVIEW

QUESTIONS OF Fact–PRELIMINARY QUESTIONS.

The qualification of an expert witness to testify is a preliminary fact for the trial court, and its ruling is not subject to exception,

(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $ 3852 ; Dec. Dig. $971.*] 9. EVIDENCE (§ 213*)-ADMISSIONS-OFFER TO COMPROMISE.

In an action for the value of services performed under a special contract, a letter from plaintiff to defendant, intended as an offer of compromise, was properly excluded.

[Ed. Note.--For other cases, see Evidence, Cent. Dig. $ 745 ; Dec. Dig. § 213.*] 10. TRIAL (8 121*)-ARGUMENT OF COUNSELCOMMENT ON EVIDENCE.

In an action for the value of services in moving a building, testimony by plaintiff, that he knew of no one in the state who did as heavy work of that nature as he did, justified a statement in argument that plaintiff was the only man in the state who could do the work.

[Ed. Note.--For other cases, see Trial, Cent. Dig. $$ 294–296; Dec. Dig. § 121.*]

Transferred from Superior Court, Franklin County.

Action by George L. Theobald against Shepard Bros. Verdict for plaintiff, and case transferred from the superior court on defendants' exceptions. Exceptions overruled.

The work was mainly done under charge of the plaintiff's foreman, and covered a

period of 20 days. The plaintiff's evidence tended to prove that the contract was that he should receive an amount equal to the actual cost of doing the work, and a good profit in addition thereto. The "good profit" was understood to embrace use of tools and personal services, with the responsibilities which attach to such an undertaking. The defendants' evidence tended to prove that the contract was as above stated, with the exception that the defendants were to assume the risks as shown by their testimony. The plaintiff denied that there was any agreement that the defendants were to assume any risks, and claimed that he assumed all risks and responsibilities as an independent contractor

All the defendants' evidence bearing upon their contention that the contract was that they should assume certain risks was the testimony of the defendants themselves. John S. Shepard, one of the defendants, testified as follows: “In regard to the work, or the liability, we discussed that thoroughly. He said he hired the men; he says he told his men that this was a class of work, this was a work, if they wanted to go to work at that kind of business, if they got their fingers pinched, anything of the kind, it would be on them; it was their work. On the other hand, in all the other risks of the building would be on us; that we should have to take care of it. And I asked him lots of questions in regard to the liability, what might happen, accidents, or what liability, as he had moved buildings and we never had had any experience in that line; and asked him in regard to it how we were to protect the building. He said he thought there would be no trouble, seldom had any trouble; if a horse was frightened, or any damage done, or any one hurt, it would be on us; he was simply doing plain day work. And of course we protected the building, put up lanterns by night, and picked up after the men."

Seth B. Shepard, the other defendant, testified as follows: "Theobald said there was no trouble with moving the building; he would take hold and move it, and he would move it at cost, and should want a good profit, and we should take the risk; and he was to have what material there was, what lumber and ties and things like that that were on the spot." "Q. Who should take the risk? A. Shepard Bros. We were to take all risk. Q. You recollect of anything, any other talk in connection with assumption of risk? A. Well, we asked him what some of the risks were, and he said, of course__and what would be necessary to do he said, of course, it would be necessary to light up around the building and like that, and that there wasn't very much risk; of course there might possibly be some ac

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