" Robinson v. Boston M. Railroad, 85 N.H. 474, 475, 476, 160 A. 473, 474. Also see Bonnin v. Boston M. Railroad, 77 N.H. 559, 562, 94 A. 196. In the case of Chicago, R.I. P. Railroad Co. v. Houston, 95 U.S. 697, 702, 24 L.Ed. 542, the court said:
When then can it be said that the engineer should have realized and did in fact realize the truck driver would not so act? The engineer says he did not see the truck until it was on the crossing, concededly too late to stop the train, as it would take a distance of from 550 to 575 feet to stop at the speed it was traveling. Should the engineer have seen the truck? If he should, but did not, this is only an act of negligence on the part of the engineer for which the defendant is not liable, because of concurrent negligence on the part of Gates (Gahagan v. Railroad, 70 N.H. 441, 444; Cavanaugh v. Railroad, 76 N.H. 68, 71; Bonnin v. Railroad, 77 N.H. 559, 562); and further because in the last clear chance doctrine, it is not a question whether the party sought to be charged should have discovered the injured party's dilemma but whether he in fact did. Clark v. Railroad, supra. If the engineer did see the truck, and realized it would not stop, when did this happen and where was the train at the time? Did he then have the time and opportunity to avoid the accident?
" On any theory of the accident fairly inferable from the evidence the plaintiff was guilty of contributory negligence as a matter of law. He was an adult in the complete possession of his faculties, and there is no evidence of a reasonable belief on his part that the tracks would not be occupied by trains or locomotives while he was there. See Chabott v. Railway, 77 N.H. 133; Bonnin v. Railroad, 77 N.H. 559; Olsen v. Railroad, 82 N.H. 120; Bursiel v. Railroad, 82 N.H. 363. "The jury were not warranted in finding that he performed the duty of care imposed upon him; for it does not appear that he used any care with reference to his position . . . which he knew, if he had thought about it, was attended with the special danger which caused his injury."
He was thoughtless and careless when his duty to the railroad as well as to himself required him to be thoughtful and careful." As in Cronin v. Company, supra, he used no care with reference to his position, which he knew, if he had thought about it, was attended with the danger which caused his injury. And as in Bonnin v. Railroad, 77 N.H. 559, 562, 563, "The evidence shows conclusively that the plaintiff could have escaped injury by the exercise of ordinary care."
The fact that an approaching locomotive or car on rails cannot veer from its path as a motor vehicle can makes a material difference in the ability of the engineer or motorman to avoid an accident as compared with the opportunities of the driver of the motor vehicle, and hence in the care required of the person in their path of being on the watch for them. And as is said in Olson v. Railroad, 82 N.H. 120, 123, "Since each case depends upon its own peculiar circumstances (Bonnin v. Railroad, supra [ 77 N.H. 559], 562; Bass v. Railway, 70 N.H. 170, 172), perfect harmony among the decisions is scarcely to be expected." The defendants excepted to the admission in discretion of a witness' estimate of the speed of the Souther car as she observed it when the decedent started to cross the street.
As in the ordinary action for negligence, each case must depend upon its own facts. Bonnin v. Railroad, 77 N.H. 559; Bass v. Railway, 70 N.H. 170; Ricker v. Hall, 69 N.H. 592. But in the present instance the solution of the problem is not difficult.
1. In the following cases where adult pedestrians have been injured while crossing or walking upon railway tracks, recovery has been denied: Currier v. Railroad, 78 N.H. 586; Coyle v. Railroad, 77 N.H. 604; Bonnin v. Railroad, 77 N.H. 559; Doucette v. Railroad, 77 N.H. 419; Connelly v. Railway, 77 N.H. 280; Chabott v. Railway, 77 N.H. 133; Greenwood v. Railroad, 77 N.H. 101; Lord v. Railroad, 74 N.H. 39; Batchelder v. Railroad, 72 N.H. 528; Myers v. Railroad, 72 N.H. 175; Waldron v. Railroad, 71 N.H. 362; Davis v. Railroad, 70 N.H. 519; Gahagan v. Railroad, 70 N.H. 441. Although a pedestrian is not subject to a more stringent rule of law than that which governs other travelers, the fact that he has "nothing to control except his own locomotion" (Bonnin v. Railroad, supra, 562) is a distinguishing circumstance of material importance on the issue of contributory negligence — an issue which the jury must determine unless it conclusively appears that at the time of the accident the injured person was not in the exercise of ordinary care. Collins v. Hustis, 79 N.H. 446.
An examination of all the evidence in the case demonstrates conclusively that the plaintiff had the requisite mentality to transact business, and that no fraud was practised upon him by the defendants to secure the release and receipts. Upon these issues reasonable men could not differ; they would find for the defendants (Waldron v. Railroad, 71 N.H. 362, 364; Bonnin v. Railroad, 77 N.H. 559, 563); and hence the plaintiff's action is barred by the statute. Plaintiff's exception overruled.
Hubbard v. Boston Albany Railroad, 162 Mass. 132, plainly distinguish it from the present case. It is well settled that a railroad in the operation of its trains has exclusive use of a grade crossing while they are passing over it; that if the statutory signals are given and a traveller disregards the warning and without sufficient reason insists upon crossing, he does so at his own risk. Granger v. Boston Albany Railroad, 146 Mass. 276, 280. New York Central Hudson River Railroad v. Cambridge, 186 Mass. 249, 251, 252. It follows that if the engineer or fireman either saw or ought to have seen the team approaching the crossing he properly could assume that it would be stopped and no attempt made to cross the tracks until the train had passed, in the absence of anything to show he knew the plaintiff or Langmaid was suffering from any physical or mental disability or infirmity. Casey v. Boston Maine Railroad, 231 Mass. 529, 533. Waldron v. Boston Maine Railroad, 71 N.H. 362, 365. Bonnin v. Boston Maine Railroad, 77 N.H. 559. Chesapeake Ohio Railway v. Hall, 109 Va. 296, 301. The law does not impose upon an engineer the duty to stop or slacken the speed of his train upon seeing a traveller upon the highway approaching a grade crossing; he may properly assume that the traveller will not at that time attempt to cross the track.
There is no evidence from which it can be found that the plaintiff's intestate, as he approached the railroad crossing, did anything or exercised any care to protect himself and avoid the accident. The case is not distinguishable from Gahagan v. Railroad, 70 N.H. 441; Waldron v. Railroad, 71 N.H. 362, and Bonnin v. Railroad, 77 N.H. 559. The deceased was riding in a carriage when the collision occurred; but that fact, in the absence of all evidence of care on his part, does not differentiate the case. Exceptions sustained: verdict and judgment for the defendants.