Hillsborough,
June 1, 1915.
Mary L. Coyle v. Boston & Maine Railroad.
Case, for personal injuries. Trial by jury. Transferred from the September term, 1914, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit.
July 9, 1913, the plaintiff was injured at the Massabesic-street crossing of the defendants’ railroad. She entered on the defendants’ right of way at Taylor street, walked beside the track and over the platform of the East Manchester station to Massabesic street, and thence along the street and over the crossing until she was struck by the end of the buffer beam of an approaching locomotive, which was drawing a freight train at a speed of five or six miles an hour and was making considerable noise. When the plaintiff was opposite the station she noticed that the crossing gates were up; and thinking that no train was approaching, she walked slowly toward the crossing, absorbed in her own affairs.
James A. Broderick and Patrick H. Sullivan (Mr. Broderick orally), for the plaintiff.
Branch & Branch (Frederick W. Branch orally), for the defendants.
Young, J.
It does not necessarily follow from the fact that the plaintiff noticed the gates were up when she was opposite the station that it can be found she was in the exercise of ordinary care, for it was her duty to do what the average person would have done in her situation. All fair-minded men will agree that such a person is not accustomed to walk upon a railroad crossing which he knows is in use, without thinking of where he is, or of the dangers peculiar to such crossings. Gibson v. Railroad, 75 N. H. 342.
Exception overruled.
All concurred.