Opinion
Decided June 29, 1918.
CASE, for negligently killing the plaintiff's intestate, William E. Pickard, as he was passing on foot over a level crossing on Main street, Tilton. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1917, of the superior court by Sawyer, J., upon the defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict.
Shannon Tilton, Frank M. Beckford and Charles B. Hibbard (Mr. Beckford and Mr. Hibbard orally), for the plaintiff.
Jewett Jewett (Mr. Theo S. Jewett orally), for the defendant.
The evidence in this case is somewhat conflicting, and presents opportunity for widely differing conclusions as to what Pickard's conduct was at and just before the time of the accident. The question argued is whether a finding could be made which would be consistent with the exercise of due care on his part. He was thirteen years old. It could be found that he was familiar with the crossing, that it was the defendant's rule to limit the speed of trains at that point to fifteen miles an hour, while on this occasion the speed was thirty-five miles, that as Pickard walked across the track he looked at the approaching train, and had no idea that he was in danger, and that another step would have put him in a place of safety. The plaintiff's case is thus brought within the rule that due care can be found from the party's reliance upon the customary conduct of others. Minot v. Railroad, 73 N.H. 317; s.c., 74 N.H. 230.
No question is made as to the sufficiency of the evidence of the defendant's fault, and the case was properly submitted to the jury.
Exceptions overruled.
All concurred.