Opinion
No. 3153.
Decided May 7, 1940.
When the crossing gates at a grade-crossing are raised, or other signalling devices fail to show a warning, either of these facts may constitute an assurance to a highway traveler that he may cross in safety and are to be considered on the issue of his contributory negligence.
Contributory negligence as a matter of law was not established where a boy of fifteen, seeing that the crossing gates were open, undertook to pass over a grade-crossing in front of a locomotive standing in close proximity thereto and failed to observe a freight train approaching from his left by which he was struck.
TWO ACTIONS ON THE CASE, to recover damages resulting from personal injuries to Harry Martin, a minor son of Joseph J. Martin, which were tried together by jury with verdicts for the plaintiffs. Transferred by Young, J., upon the defendant's exceptions to the denial of its motions for nonsuits and directed verdicts.
There was evidence tending to prove the following facts. On the evening of January 19, 1938, shortly after nine o'clock, Harry Martin, hereinafter called the plaintiff, who was then 15 years old, started to cross the defendant's tracks at the East Hollis Street crossing just south of Nashua Union Station in the city of Nashua. At this point the highway crosses six of the defendant's tracks and the crossing is protected by gates. The gates were up when the plaintiff started to cross the tracks from east to west. He had crossed four tracks in safety when he was hit by a freight train coming from his left on the fifth track. During all the time occupied by the plaintiff in crossing the tracks there was a passenger train standing at the station on the sixth track, the locomotive of which stood close to the north side of the crossing. The plaintiff's course, if continued, would have carried him in front of this locomotive and within a few feet of it. He testified that when he started across the tracks the gates were "straight up"; that as he proceeded he did not look to the left at but kept his eyes "right in front"; that he did not notice the train standing in the station until he was in the middle of the crossing, and in answer to the question, "Why didn't you notice it before you got to the middle?" he replied, "The gates were up and I didn't look." He heard no warning sound from the freight train and did not see the headlight of the locomotive.
Ivory C. Eaton (by brief and orally), for the plaintiff.
McLane, Davis Carleton (Mr. Carleton orally), for the defendant.
The only proposition seriously argued by the defendant in support of its exceptions to the denial of its motions for nonsuits and directed verdicts is that "plaintiff was contributorily negligent as a matter of law."
It has often been held by the courts of other jurisdictions that the fact that crossing gates are open or that other signalling devices maintained at crossings by a railroad do not give warning, constitutes an assurance that it is safe to cross the tracks upon which a traveler may place some reliance and is a circumstance to be taken into consideration by the jury on the issue of contributory negligence. The authorities are collected and discussed in Crowley v. Railroad, 204 Iowa 1235, and note to that case in 53 A.L.R. 973. In the recent case of Cyr v. Railroad, 88 N.H. 278, it was assumed without discussion that such was the effect of open crossing gates. This being the law, it is plain that in a case where there is a failure of warning signals, a traveler can be held to be negligent as a matter of law only under very exceptional circumstances. More often such failure will be found to be "a decisive consideration in favor of the submission of such an issue to the jury," as stated in State v. Railroad, 157 Md. 256 and cases cited.
In the present case the testimony of the plaintiff fully justified the inference that his conduct was influenced by the assurance of safety which he received from the open gates. The plaintiff's youth, and the close proximity of another locomotive to which he was giving attention were also factors to be considered in passing upon the issue of his due care. Under these circumstances it cannot be said as a matter of law that the evidence conclusively established his contributory negligence and there must accordingly be
Judgments on the verdicts.
All concurred.