The defendants contend that the provisions of chapter 75, Laws 1899, do not require that a notice should be *Page 572 posted to entitle them to the benefits or exemptions there conferred, and that they are relieved from liability in this action, even if no notice was posted. This contention does not require extended consideration if the language used in the act is to be taken as meaning what it says. By section 2, the civil liability of railroads to persons injured "while engaged in any act prohibited by section 1" is limited to damages occasioned by their "willful or gross negligence." Every act described in section 1 is prohibited when notice has been posted forbidding it. Therefore, the civil liability of railroads, under section 2, is limited to damages occasioned by their willful or gross negligence only when the person injured is engaged in some act described in section 1 that is forbidden by a posted notice.
The defendants further contend that, if notice is necessary, the notice put in evidence was posted and answered the requirements of the statute. An answer to this is, that it does not conclusively appear that this notice was posted at the time of the accident, and that the evidence is such as would warrant a jury in drawing the opposite conclusion. The statutory requisite as to posting is not complied with by showing that a notice was at some time posted upon the defendants' premises, where persons entering thereon would in the exercise of reasonable care see it, but it must further appear that at the time of the accident the notice was maintained in such condition that persons for whose benefit it was intended could by the exercise of like care know of it. It may also be added that we do not think the notice put in evidence answers the requirements of chapter 75, Laws 1899. The purpose of the legislature in enacting the statute was to prevent persons from trespassing upon the property of railroads, by rendering them liable to punishment by fine, and to create a right of defence in favor of railroads, as against persons injured while trespassing, not known to our common law; and it provided, as a condition to the existence of the liability and the creation of this right, that railroads should post notices warning persons against trespassing upon their premises. What further information, if, any, a notice under this statute should contain need not now be considered. It is sufficient for this case that we are of the opinion the one put in evidence was not intended, and does not purport, to comply with its provisions. That notice was drafted long before the enactment of chapter 75, for it bears the date of December 1, 1895. It begins by reciting the provisions of section 5, chapter 266, of the Public Statutes, and is a private-crossing notice under that section. If it was intended as a notice under chapter 75, it was clearly misleading and cannot be given effect under it. It is the general doctrine that "where a statute directs the publication of notices *Page 573 having reference to personal rights or property, the requirements of the statute are to be strictly pursued"; that nothing that can be reasonably made certain and definite is to be disregarded; and that if the published notices do not conform to what the statute requires, and their tendency is to mislead persons for whose benefit they are intended, no rights will be acquired under them. Abbot v. Banfield, 43 N.H. 152, 155.
Since the defendants cannot avail themselves of the benefits of chapter 75, the case is governed by the principles of the common law applicable to negligence cases; and under those principles, as understood in this state, the defendants would be responsible for negligently injuring the deceased through their active intervention, even if she were a trespasser, provided at the time of the accident she was in the exercise of ordinary care, and they knew of her presence in a dangerous situation, or failed to exercise due care to discover her presence in such a situation when circumstances existed which would put a person of average prudence upon inquiry. Her presence upon their premises would then be a mere condition and not a contributing cause. Minot v. Railroad, ante, pp. 317, 321; Myers v. Railroad, 72 N.H. 175; Little v. Railroad, 72 N.H. 61; Parkinson v. Railway, 71 N.H. 28; Mitchell v. Railroad, 68 N.H. 96.
It was the duty of the deceased to use the care a person of average prudence would exercise under like circumstances; and her knowledge of the situation and the dangers confronting her on her way to the station the night of the accident is one of the circumstances to be considered in determining the care she should have exercised. According to the evidence, she knew the train she was to take was scheduled to leave the station for the south at twelve minutes before eight. She knew by the clock at the Robinson house it was fifteen minutes before eight when she left for the station. She also knew in a general way the distance she had to travel. When in the vicinity of the freight depot, she saw a train approaching from the north. It appeared to be a long way off. She thought it was the train she was to take, and would stop at the station. She did not know, and was not in fault for not knowing, that it was the express train an hour and forty minutes late, that it would not stop at the station, and that it would pass her, going at the rate of about fifty miles an hour, before she could reach the station. Under such circumstances, a jury might reasonably find that she was justified in believing she could safely continue on her way to the station, and was not negligent in doing so.
On the other hand, it would seem that it could have been found that the defendants were negligent, and that their negligence *Page 574 caused the deceased's injury. The evidence was that the defendants knew the express train was passing the station within a few minutes of the scheduled time for the arrival and departure of the local train; that they knew, or should have known, there was a path east of the tracks which people were accustomed to use every day in going to trains and to almost every train; that for a short distance south of the station the path was beside the main line; that in that locality the snow was so filled in east of the path as to make it narrow and prevent a person getting a safe distance from the track; and that if a train passed while a person was walking in the path beside the main line, he would be struck by it. This evidence would warrant the inference that the defendants could reasonably have anticipated the deceased's presence in a dangerous situation; and being thus put upon inquiry, their negligent failure to discover her presence and to avoid injuring her could be found from the evidence that it was a clear, moonlight night, that the ground was covered with snow, that the deceased was tall and dressed in black, that the view of the track was unobstructed for a mile and it half above the freight depot, that no greater or different outlook was kept as the train approached and passed the station than on other sections of the road, that the speed of the train was not reduced, and that to have done so would have enabled the deceased to reach the platform in safety. The order must therefore be,
Exception sustained.
PARSONS, C. J., and CHASE and WALKER, JJ., concurred.