Opinion
Decided December 4, 1928.
A bridge carrying highway travel over a railroad's tracks is a crossing within the meaning of P. L., c. 249, s. 1, and it is the duty of the railroad to exercise reasonable care to keep such bridge in a reasonably safe and convenient condition for public use.
CASE, for negligence. Trial by jury and verdict for the plaintiff.
There was evidence from which the following facts could be found. The plaintiff was injured upon September 17, 1925, when an automobile driven by her broke through the railing of a highway bridge maintained by the defendant over its tracks in the town of Enfield and fell to the ground below. The road at that time was wet and slippery. As the plaintiff's car approached the bridge at a speed of fifteen to eighteen miles per hour, the rear wheels struck a bump in the road which caused them to skid. As a result, the car surmounted the wheel guard and struck a glancing blow against the right hand railing which "fell over in a body." The railing offered no apparent resistance to the car. It "seemed like paper." Of the four upright posts supporting it three were broken off and appeared to be very rotten. This railing was constructed five years before the accident and had never been altered or repaired.
Transferred by Sawyer, C. J., upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict.
Murchie Murchie (Mr. Alexander Murchie orally), for the plaintiff.
Jewett Jewett (Mr. Stephen S. Jewett orally), for the defendant.
It was a statutory duty of the defendant "to provide suitable crossings" over its tracks "for the accommodation of the public." P. S., c. 159, s. 1; P. L., c. 249, s. 1. "A bridge carrying highway travel over a railroad as a crossing, within the meaning of this statute." Laconia v. Railroad, 81 N.H. 408, 409; Concord v. Railroad, 69 N.H. 87. Such structures are regarded in law not as parts of the highways but parts of the railroad, which it is "bound to keep in repair suitable for the public travel thereon." Laconia v. Railroad, supra, 411; Worcester c. Railroad v. Nashua, 63 N.H. 593, 596. Hence it was the duty of the defendant to exercise reasonable care to keep the bridge in question "in a reasonably safe and convenient condition for public use." Dickey v. Railroad, 70 N.H. 34; Concord v. Railroad, supra. So far as this duty concerned the maintenance of an adequate railing upon the bridge, it differed in no essential particular from that which rested upon the town in the case of Kelsea v. Stratford, 80 N.H. 148, and that decision governs the case at bar. The question of the defendant's negligence was properly submitted to the jury.
Judgment on the verdict.
All concurred.