Herman A. Niemi v. Boston & Maine

The drivers negligence is a required finding. As the plaintiffs car proceeded towards the crossing, the train approached it from the left. When about three rods from the nearest rail over the crossing the driver looked to the left. The train was then three hundred to three hundred fifty feet from the crossing. The evidence that the train was clearly within range of his sight appears definitely conclusive. The jury took a view and it is assumed that the photographs in evidence show the situation and conditions at the crossing. Their integrity has not been questioned or the statement that they were taken very soon after the collision. The drivers testimony that the train could not be seen at the point where he looked by reason of intervening obstructions must be rejected as untrue. Collette v. Railroad, 83 N.H. 210, 217; Moreau v. Insurance Co., 84 N.H. 422, 425. The obstructions to which he testified of a rail fence and bank at the side of the road were not high enough to shut off a view of the train. His testimony that the fence was buried to its top with snow he modified after being shown the photographs which disproved it. It was broad daylight and the air was clear. While it is incorrectly stated in the brief for the plaintiffs that the driver stopped the car when he looked, he testified to a speed very close to six or seven miles an hour. He had favorable opportunity to make a reliable observation.