1. The question and answer regarding the condition of the "times" in Laconia were not "so inconsistent with. legal fairness of trial as to make it a matter of law that there should be a new trial," especially in view of the immediate action of the court excluding the evidence and instructing the jury not, to heed it. Aldrich v. Railroad, 67 N.H. 380, 382; Gilman v. Laconia, 71 N.H. 212.
2. Bearing upon the probability whether the decedent exercised care at the crossing upon the occasion in question, it was competent to show by the decedent's widow and Martha Bowers that in passing over the crossing upon previous occasions he had remarked upon its dangerous character and taken precautions against collision. Evans v. Railroad, 66 N.H. 194; Lyman v. Railroad, 66; N.H. 200, 203, 204.
3. The objections to the testimony of George Plummer go entirely to its weight and credibility, and present no question of law.
4. Upon the questions of darkness and whether the train was running on schedule time, the watch which was in the decedent's pocket when the collision occurred, and which was stopped, had some probative value, and was competent, in connection with the other testimony, upon those points.
5. The testimony of passengers who were not observing, that they did not hear the whistle, was open to no legal objection.
6. The observations of Daniels and others as to the speed of the train in question at other times and points presents no question of law, and the same is true of the testimony regarding the reflection of the locomotive headlight. Parkinson v. Railroad, 61 N.H. 416; Proctor v. Freezer Co.,70 N.H. 3; Whitcher v. Railroad, 70 N.H. 242, 248.
7. The motions for nonsuit and verdict were properly denied. There was evidence that the defendants did not give the eighty *Page 210 rod whistle required by statute for the protection of travelers at railroad crossings, and it was admitted that no warning whistle was given by the defendants when they discovered the decedent about two rods from the crossing, approaching the crossing and apparently paying no attention to the approach of the train. Upon the case presented by the record, we think reasonable men might find that the decedent's injury was caused by the defendants' negligence.
But it is urged that the decedent was guilty of contributory negligence. In view of the evidence of the decedent's frequent recognition of the dangerous character of the crossing and of his previous care in passing over it, — that on the occasion in question he was traveling in a hay-rack containing an empty barrel and tin wash-boiler, over frozen ground, upon a night more or less dark, — that the statutory whistle was not given, — that the schedule time for the crossing of the train had passed, — that the track was obscured by the lay of the land in the vicinity of the crossing so that the decedent could not see the train 300 feet away until he was within about two rods of the crossing, — that his horse, attached to the rigging mentioned, was trotting at the rate of about five miles an hour when the two-rod point was reached, — we think it cannot be said as matter of law that the decedent was guilty of contributory negligence, upon the mere evidence of the traveling engineer (the weight and credibility of which might be materially affected in the minds of the jury by the other evidence and circumstances bearing upon its probability), that he saw the decedent about two rods from the crossing, when the train was about 300 feet away, looking straight ahead and apparently paying no attention to the approaching train, especially in view of the statement of the witness that he did not know whether the decedent would then have had time to stop and avoid the injury. The case is distinguishable from Waldron v. Railroad,71 N.H. 362, and is more like Smith v. Railroad, 70 N.H. 53, Davis v. Railroad, 68 N.H. 247, 248, Folsom v. Railroad, 68 N.H. 454, Evans v. Railroad, 66 N.H. 194, Lyman v. Railroad, 66 N.H. 200, and State v. Railroad, 53 N.H. 528.
Exceptions overruled.
All concurred. *Page 211