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trestle above Jacob's Ladder and tighten the bolts on the boards, which increased the pressure of the brakes, and to consume half an hour in making the trip. All of the witnesses testified that if a man had been down on a board from one to three times he would be qualified and could make the descent safely if he observed the rules.

presence of the plaintiff, ordered Steve Meaney and Sheehy to go down on the train, and that the plaintiff would not have gone on a slide board if he had known that Meaney was to go on one; that the foreman was an incompetent man; and that if he was given charge of the men the defendants ought to have known that his orders would not be obeyed.

The plaintiff testified that he could make the trip safely in 6 minutes, but that he could do it more easily and with a greater degree of safety in 12 minutes. It was more dangerous to go on a board on a wet, foggy night, as the rail would be slippery, and greater pressure would be required on the brakes to regulate the speed, and it would be more difficult to see where one was. All the men had used the boards on foggy nights, some perhaps not as much as others, prior to the accident. The plaintiff had used them about 25 times in all in making the descent, and Steve Meaney about 20 times. Both had been instructed how to manage a slide board, they had discussed with other members of the crew the dangers attendant upon making the trip, they knew the neces- fellows, said: "You better not go too close;

sity of keeping a reasonable distance apart and of going slowly. and they knew the danger, in case one lost control of his board, of running into the man ahead of him and of being run into by one coming from behind. They had been over the road twice a day for nine weeks, and knew the nature of the grades and where they were the steepest. They had worked with each other and with all the men in the crew, except Sheehy, from the day they entered the defendants' employment in May. They had been down the mountain repeatedly on slide boards in company with the other men, knew how they ran their boards and whether they complied with the rules and instructions that had been given them, and knew the increased danger of their use on wet, foggy nights.

But, notwithstanding all this, counsel for the plaintiff contend that, inasmuch as there was evidence that during a period of 20 years or more three or four accidents had occurred through slide boards coming in collision, and for a time at least their use was forbidden, the jury were warranted in find ing that the plaintiff did not know the dangers and assume the risks attending their use. However, we are unable to see that a knowledge of the facts disclosed by this evidence would have been of any aid to him, for he already knew all the facts concerning the use of slide boards necessary to his appreciation of the risk; and in our opinion the evidence does not warrant a finding that the defendants were guilty of a breach of duty to the plaintiff because they permitted slide boards to be used.

[3] Was the plaintiff injured through any fault or neglect of the foreman for which the defendants were responsible? Counsel for the plaintiff take the position that on

The evidence relating to this branch of the case was that on the afternoon of the accident it had rained so that the men did not work. The plaintiff testified that at about a quarter past 4 the foreman came into the stagehouse, where he and Steve Meaney and two or three members of the crew were, and said, "Take your boards and go ahead of the train to-night"; that they then started in the direction of the train to get their boards, and, when they reached the platform beside the track, other members of the crew, including Sheehy, joined them. While they were all together, the foreman told Sheehy and Steve Meaney "not to go on the boards, to go on the train," and, turning to the other

if you do, you will kill each other. Keep apart. The track has been greased, and it is rainy, and you will kill each other." Having said this, the foreman turned and went to the Tiptop House. There was a heavy fog upon the mountain, so that at times one could not see more than 10 feet. Then, again, it would shift, and you might see 50 or 150 feet. The plaintiff's board was beside the track, a little below the engine. He procured it and attached it to the center rail. As he did this, he did not see any of the other men. He knew some of them had gone ahead of him, but did not know who. He started off without further ascertaining what the rest of the men were to do. Steve Meaney followed later, and, having let his board go too fast on the long trestle, he ran into the plaintiff on Jacob's Ladder, threw him off, and injured him. The plaintiff testified that he really believed the foreman thought Meaney would obey him; that he had never known him to disobey any strict orders, and although the men had disobeyed the foreman as to some small things, as he had probably done himself, they would not do so before him.

Now, if the foreman gave this order to Meaney, as the plaintiff testified, we are at a loss to see how his incompetency, if he was incompetent, could be found to have in any way contributed to cause the plaintiff's injury. The order was an entirely proper one, and, if obeyed, the accident would not have happened. There was no evidence that Horne, the defendants' superintendent, ever knew that the men disobeyed the foreman's orders; and the evidence would not justify a conclusion that he ought to have known of it.

Counsel also contend that if the order to the train, was not given, the plaintiff had no reason to think that Meaney would go on a board that night, as it was wet and foggy; that it had not been customary for him to go on a board on such a night; and therefore the plaintiff could not be held to have assumed the risk of being injured by him in case the defendants permitted him to go. The order "not to go down on the boards," etc., was either given or not given. We have dis cussed its bearing in case it was given. We will now discuss the evidence on the basis that it was not given. If it was not given, then the question is: Was there evidence from which it could be found that the plaintiff had reason to believe that Meaney was not to go on a board that night?

[4] The plaintiff says it was not Meaney's custom to go on a board on wet or foggy nights. The only evidence as to this was that when Meaney was a new man-that is, when he first began using a board-there were two nights when it was wet and foggy that he went down on the train, and one other such night when he went on a board. But we do not think this would warrant the

jury in finding that it was his custom to go on the train on such nights, and that the plaintiff would be justified in assuming that he would not go on a board. The train was on the mountain the night of the accident. The plaintiff justifies his own conduct in coming down on a board instead of on the train, upon the ground that he was ordered by the foreman to go on a board ahead of the train. This order is the one the foreman gave at the stagehouse, when he came in there to notify the men to get ready to go down the mountain. It will be recalled that this order was given to all the men in the stagehouse, and that Steve Meaney was there and heard the order the same as all the rest. The plaintiff himself so testified. Meaney also testified that the boss came in and "told us we better go down ahead of the train." Now, if the plaintiff had reason to believe that he was ordered by the foreman to go on a board, he had just as much reason for believing that Meaney, to whom the order was given as well as to himself, would go on a board; and, as he had never known him to disobey strict orders, that he would not in this case.

The evidence also discloses that the plaintiff knew as much or more than the foreman did about Meaney's capacity to manage a slide board. He had worked with him every day from the first of the season to the day of the accident. He had been down the mountain on slide boards with him, sometimes starting just ahead, then again just behind him. He knew the increased danger because of fog and rain, and testified that he and the rest of the men were warned this very night by the foreman that the track had been greased, that it was

rainy, and that if they went down that night and went too close they would kill each other.

[5] The only reasonable conclusion fairminded men could draw from the evidence was that the plaintiff knew and appreciated the danger and assumed the risk.

[6] The plaintiff was not a passenger. His trip down the mountain was a mere incident of his employment. Gillshannon v. Railroad, 10 Cush. (Mass.) 228; Dickinson v. Railway, 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284; Kilduff v. Railway, 195 Mass. 307, 81 N. EL. 191, 9 L R. A. (N. S.) 873; 6 Сус. 543.

The order is: Verdict set aside; judgment for the defendants. All concurred.

(76 Ν. Η. 68)

CAVANAUGH v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Hills

borough. March 7, 1911.)

1. TRIAL (§ 132*) - ARGUMENT OF COUNSEL.

In an action for injuries at a crossing, that plaintiff's attorney in his argument said that if the jury desired to "protect this railroad, and say they were in the exercise of ordinary care," they could do so, but on objection withdrew the expression and asked the jury to disregard it, and the court instructed them to pay no attention to it, the error was harmless.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 315; Dec. Dig. § 132.*] 2. RAILROADS (§ 350*)-ACCIDENT AT CROSSING-NEGLIGENCE-QUESTION FOR JURY.

Where, in an action for the death of plaintiff's intestate, a girl, at a crossing, there was evidence that the engineer of defendant's train knew the team was approaching the crossing in ignorance of the coming train at a time when he could have given warning or applied the brakes in time to prevent a collision, and from the evidence it might have been found that he did neither until too late, whether the engineer's failure to act was negligence causing the injury was for the jury.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1152-1165; Dec. Dig. § 350.*] 3. RAILROADS (§ 337*)-ACCIDENT AT CROSSING-PROXIMATE CAUSE.

Where danger of the driver of a wagon at a crossing was created by her own negligence, yet, if the engineer of defendant's train by due care could have prevented the injury, the failure to exercise such care was the sole proximate cause of the injury.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.*] 4. RAILROADS (§ 337*) - ACCIDENT AT CROSSING-NEGLIGENCE OF TRAINMEN.

Where trainmen would anticipate a collision with a traveler at a crossing and could avoid it, their negligent failure to do so is the responsible cause of the injury, if at the time of the discovery the traveler could not save himself.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1090-1095: Dec. Dig. § 337.*] Bingham and Peaslee, JJ., dissenting.

Exceptions from Superior Court, Hillsborough County; Pike, Judge.

Action by James T. Cavanaugh, adminis

trator, against the Boston & Maine Railroad. | the court. Seeton v. Dunbarton, 73 Ν. Η. Judgment for plaintiff, and defendant ex- 134, 137, 59 Atl. 944; Leavitt v. Telephone cepts to the ruling of the Superior Court in denying its motion for a nonsuit and to the remarks of plaintiff's counsel. Exceptions overruled.

Edith Bolis, the plaintiff's intestate, was killed by collision with the defendants' train upon a highway grade crossing. At the time of her death she was about 13 years old. She was driving alone in an open wagon, immediately following a carriage in which were three adults. She was driving slowly, would have seen the train if she had looked, and

Co., 72 N. H. 290, 292, 56 Atl. 462.

[2] The remaining exception is to the denial of the motion for a nonsuit, which was asked upon the ground of the absence of any evidence of care on the part of the person injured. As the case is drawn, it may be inferred that the existence of evidence of the defendants' fault was conceded; but, if such concession was not intended, this branch of the question requires little consideration. From the testimony of the engineer, it could be found that he knew the teams were ap

could have stopped within six feet of the proaching the crossing in ignorance of the

crossing. The engineer testified that he saw the teams approaching the crossing when the train was about 72 rods and the forward carriage about 80 rods distant therefrom; that the teams did not slacken their speed as teams usually do; that he sounded the whistle when he was 40 or 50 rods from the crossing and continued to sound it until the team was struck; that, when he failed to attract the attention of the travelers, he applied the brakes for an emergency stop, this being done when the train was about 40 rods from the crossing. The teams drove upon the crossing; the first one clearing the locomotive. There was evidence tending to show that the whistle was not sounded nor the brakes applied until just before the crossing was reached, and that the train could have been brought to a full stop within 500 feet.

The defendants' motion for a nonsuit, on the ground that there was no evidence of care on the part of the plaintiff's intestate at the time of the accident, was denied, subject to exception. The only question submit

ted to the jury was the liability of the defendants under the principles of the "last clear chance" doctrine.

coming train, at a time when he could have given warning or applied the brakes in season to prevent a collision; and from all the evidence it might be found he did not do either until too late. What the facts were, and whether the engineer's failure to act was negligence causing the injury, were questions for the jury. The motion was properly denied if the jury could be permitted to find from the evidence of the conduct of the plaintiff's intestate, a girl of 13 years, that she exercised such care as could reasonably be required of such a person under all the circumstances of the case, or, if she did not, that the defendants' negligence as distinguished from hers was the sole proximate cause of the injury. The first question was not submitted to the jury, nor does the case disclose the form in which the second was presented to them.

[3] Upon the evidence in the case, it was for the jury to say whether the exercise by the trainmen of such care as the circumstances required, after the engineer discovered the deceased, would have prevented the

injury. If it would, the failure to exercise such care was the sole proximate cause of the injury, although the danger was created

In argument, counsel for the plaintiff said: by the deceased's negligent inattention to the

"Gentlemen, take this case. Do what is right; that is all. Look it over; and if you want to condemn the little 13 year old girl because she didn't stop, if you want to condemn this little girl and protect this railroad, and say they were in the exercise of ordinary care, do so." Objection was made to the use of the word "protect," whereupon counsel withdrew the expression and asked the jury to disregard it. They were also instructed by the court to pay no attention to it. The defendants claimed an exception,

which was allowed.

situation. This has been held in several cases upon facts identical with those presented here (State v. Railroad, 52 N. H. 528; Parkinson v. Railway, 71 N. H. 28, 51 Atl. 268; Little v. Railroad, 72 N. Η. 61, 55 Atl. 190, s. c. 72 N. H. 502, 57 Atl. 920; Yeatonv.

Railroad, 73 N. H. 285, 61 Atl. 522; Altman v. Railway, 75 N. H. 573, 78 Atl. 616), and was conceded in Stearns v. Railroad, 75 N. H. 40, 46, 71 Atl. 21.

The law does not justify an avoidable injury to the person of one who carelessly ex

poses himself to danger. Nashua, etc., Co. v. Railroad, 62 Ν. Η. 159. While the rule is

Doyle & Lucier, for plaintiff. Hamblett & clear, its application to the various situaSpring, for defendant.

PARSONS, C. J. [1] The argument contained no statement of fact not in evidence. If the use of the word "protect" was an appeal to the jury to decide the case upon grounds which they could not properly take into consideration, the error was one of

tions found in this class of cases may involve some "nice distinctions." Gibson v. Railroad, 75 N. H. 342, 74 Atl. 589. But the difficulties arise from the facts, not from the law. "While all [cases] are governed by the fundamental principle, that he, only, who by ordinary care can and does not prevent an injury is responsible in damages, it is im

versally applicable. A statement of the law | cident, or at least until it is too late for ei

correct in its application to one set of facts may be inaccurate when applied to another." Nashua, etc., Co. v. Railroad, 62 N. H. 159, 164. The danger may be created by the intervention of both parties; neither discovering the other until neither can avoid the resulting injury. In such cases the injury and the danger result from the same cause, the negligent inattention of both parties, and there can be no recovery. Gibson v. Railroad, 75 N. H. 342, 74 Atl. 589; Batchelder v. Railroad, 72 N. H. 528, 57 Atl. 926.

If the trainmen see the traveler approaching the crossing, there still may be no evidence upon which it can be found that they ought to have apprehended the traveler would go upon the crossing in advance of the train. Gahagan v. Railroad, 70 N. H.

ther party to avoid the injury, and since he could have stopped in a place of safety after the time when the trainmen could have done anything to prevent the accident, it has been claimed that, if his negligent failure to observe and stop is not subsequent to any negligence in the operation of the train, it is at least concurrent, and there can be no recovery. The conclusion that one conscious of danger of serious injury to a human being if he persists in the course which he is pursuing, which he can prevent by care, should be discharged from responsibility because of negligent ignorance of the danger in the person injured, is so fundamentally unjust and contrary to natural reason that few cases are to be found that carry the logic of the rule of contributory neg

441, 50 Atl. 146, 55 L. R. A. 426; Waldron ligence to that extent. With substantial v. Railroad, 71 N. H. 362, 52 Atl. 443. In unanimity, recovery is permitted in such casthese cases the plaintiffs fail, not because of es, either upon the ground that the lack of their negligence, but because of the absence attention in the party injured is not the of negligence in the defendants. The traveler may be seen by the trainmen in the act of crossing, at a time when they can avoid the injury and the traveler cannot. Stearns v. Railroad, 75 N. H. 40, 71 Atl. 21; Yeaton law as to contributory negligence has no apv. Railroad, 73 N. H. 285, 61 Atl. 522. The plication. Murphy v. Deane, 101 Mass. 455,

train may be discovered by the traveler at a time when he could avoid injury by care. In such case there can be no recovery, even if the railroad employés could have avoided the injury by like care. Shannon v. Railroad, 71 N. H. 286, 51 Atl. 1074. The person injured may be incapable of taking care, and the railroad liable for negligent failure to discover him if they ought to have anticipated his presence in that condition. Edgerly v. Railroad, 67 N. H. 312, 36 Atl. 558. Such a case does not differ from that of property negligently permitted by the owner to be or to go in the way of the train. Laronde v. Railroad, 73 N. H. 247, 60 Atl. 684. The traveler may be discovered by the trainmen on the crossing, or approaching it, as in this case, under circumstances indicating inattention to the train or the crossing.

[4] In this situation, the cases cited hold that if ordinary men, with the information the trainmen have, would anticipate a collision at the crossing and avoid it, the trainmen's negligent failure to do so is the responsible cause of the injury. The rule of most general application deducible from the authorities is that the defendants are liable if, upon discovery of the danger, the plaintiff cannot save himself, while the defendants upon their discovery of the danger could

proximate cause of the injury, or that the failure of the trainmen to act under such circumstances so far partakes of the nature of a wanton or intentional wrong that the

463, 3 Am. Rep. 390; Union Pacific Ry. v. Cappier, 66 Kan. 649, 72 Pac. 281, 69 L. R. A. 516, note; Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, note; 1 Thomp. Com. Neg. § 238; 2 Thomp. Com. Neg. § 1598; Cool. Torts, *674. It may be that neither explanation is strictly logical, and that the real foundation for the rule is merely its fundamental justice and reasonableness. The justice of the rule that "the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence" (Grand Trunk Ry. v. Ives, 144 U. S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. 485), may be a sufficient foundation for it.

Cases where at the time of the injury the plaintiff is not conscious of the danger in season to avert it, either because he is drunk, asleep, absorbed in introspection, or otherwise inattentive, while the defendant has knowledge of the danger, simply fall into the class where the defendant is present and the plaintiff is absent. They are governed by Davies v. Mann, 10 M. & W. 546. The result in that case would have been the same if the plaintiff had been asleep by the wayside within shouting distance of his donkey. The

have avoided the injury. Altman v. Rail- plaintiff's inability to control the situation

way, 75 N. H. 573, 78 Atl. 616; Little v. Railroad, 72 N. H. 61, 55 Atl. 190, s. c. 72 N. H. 502, 57 Atl. 920; Parkinson v. Railway, 71 Ν. Η. 28, 51 Atl. 268; State v. Railroad, 52 Ν. Η. 528.

As the negligence of the party injured in failing to observe the approach of the train

is the test, and it is immaterial whether he is not in actual charge of the subject of injury because the absence of his body shows he could not have been, or the fact be proved by showing that for other cause he, himself, was not, in control. Whether, under such circumstances, the defendant upon the inplaintiff's condition, that he was drunk, asleep, nonjudging, or not observing, bears on the defendant's negligence. If it cannot be found he ought to have known the plaintiff's condition, he is not liable; if he ought, he may be.

"The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property similarly situated in his absence. The law deals with the behavior of the parties in the situation in which it finds them, regardless of how that situation was produced. If the two parties approach the point of collision asleep or inattentive, and neither wakes up or becomes alive to the situation, the concurrent negligence of both prevents a recovery from either; but if one wakes up, or becomes aware of the danger existing from the fact that another asleep or inattentive is thoughtlessly in danger of injury by him, his fault, if he can but does not avert the injury from such danger, is alone the cause of the subsequent injury. There is no difference between sailing the seas with a rudderless ship and traversing the highway with a rudderless mind. One knowing the situation, who can by care avert a collision and does not, is chargeable for the resulting loss, despite the uncontrolled character of the other's progress." Nashua, etc., Co. v. Railroad, 62 Ν. Η. 159.

The injury in this case arose because the defendants with their train and the deceased with her team both attempted to occupy at the same time a portion of a public highway which each had the right to use, but which neither had the right to occupy when it was in use by the other. Each was bound to such acts as would constitute care under the circumstances, to prevent an attempt at such joint occupation. While ordinarily due care would require that the wagon should wait and allow the train to go by, the failure to exercise such care and the negligent occupation of the crossing by the wagon gave the train no right to attempt to pass at the same time. State v. Railroad, 52 N. H. 528, 556; Huntress v. Railroad, 66 N. H. 185, 34 Atl.

right which could not be enjoyed by both at the same time; the defendants knew of the deceased's proposed use; the deceased did not know the defendants' purpose. If the deceased was in fault for not knowing the defendants' desire then to pass over the crossing, the defendants were in fault for attempting to cross while the path was in use. As the deceased's negligent occupation of the crossing did not increase the defendants' right to use it, they cannot recover of her for injury from their wrongful attempt, but must pay the damage done to her by their wrongful act. As her negligent act gave them no right to cross, it is immaterial in her suit for the injury whether her act of which they had notice was negligent or

careful.

Exceptions overruled.

WALKER and YOUNG, JJ., concur.

BINGHAM, J. (dissenting). In discussing the questions involved in this case, it is important to keep in mind that the only theory upon which the case was submitted to the jury was that of the "last clear chance" doctrine, and that by thus restricting the scope of the inquiry the court in effect ruled that the jury must assume that the deceased was negligent in driving her horse upon the crossing at the time of the accident. That this is a correct interpretation of the situation as presented to the trial justice is disclosed by an examination of the decision in Gibson v. Railroad, 75 N. Η. 342, 344, 74 Atl. 589, where the court say: "This question [the one presented by the doctrine of the last clear chance] was submitted upon the assumption that the plaintiff's conduct in going upon the crossing might be found to be negligent." Now, bearing this in mind, we will proceed to a discussion of what the last clear chance doctrine is and its application to the facts of this case.

has created,

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In Nashua, etc., Co. v. Railroad, 62 Ν. Η. 159, 164, Judge Carpenter, in discussing this doctrine, said: "An action may result from a hazardous situation caused by the previous negligence of one or both parties. If at the 154, 49 Am. St. Rep. 600; Gahagan v. Rail-time of the injury the defendant is unable road, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. to remove the danger which his negligence 426; Little v. Railroad, 72 N. H. 502, 503, 57 the plaintiff can reAtl. 920; Continental Imp. Co. v. Stead, 95 cover or not, according as, by ordinary care, U. S. 161, 24 L. Ed. 403. Whether the use he can or cannot protect himself from the of the crossing at the time by the traveler natural consequences of the situation. If the was careful or negligent, the train could not plaintiff, in like manner, is unable to obviate lawfully use it while it was in use as a part the danger which his prior negligence has of the highway. Having notice that the trav- produced, he can recover or not, eler was about to use it at a time when they according as the defendant, by the same decould have refrained from entering upon it, gree of care, can or cannot avoid the natural they are as much in the wrong and as fully consequences of such negligence. If due care the sole authors of the resulting injury as on the part of either at the time of the inthe traveler would be who attempted to pass jury would prevent it, the antecedent negliwith knowledge that it was in use by the gence of one or both parties is immaterial, train. except it may be as one of the circumstances

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The situation is simply this: Both par- by which the requisite measure of care is to

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