In an action against a railroad company for causing the death of a highway traveler at a grade crossing, the fact that the locomotive bell was not rung as required by statute warrants a finding of the defendants' negligence. Evidence that a locomotive bell was not heard by those in a position to hear it warrants a finding that it was not rung, in the absence of any evidence that such warning was given or any explanation of the failure to call witnesses upon that point. The fact that a person killed at a grade crossing customarily stopped, looked, and listened for trains at that point is competent to prove similar conduct at the time of injury, in the absence of direct evidence as to his behavior on that occasion.
PARSONS, C. J.
The failure of the defendants to ring the bell upon approaching the crossing, as required by statute, was evidence of a breach of duty owed by them to the deceased, a traveler upon the highway. P. S., c. 159, s. 6; Batchelder v. Railroad, 72 N.H. 528. Upon the evidence that two persons who were in position to hear the bell, if rung, did not hear it, and in the absence of any evidence that the bell was rung or of any explanation of the failure to call witnesses upon that point (Mitchell v. Railroad, 68 N.H. 96, 117), the finding that the bell was not rung cannot be set aside as contrary to reason.
Upon the question of the deceased's care and the exception to the evidence of custom, the case is not distinguishable from Smith v. Railroad, 70 N.H. 53. The distinction between these cases and Gahagan v. Railroad, 70 N.H. 441, and Waldron v. Railroad, 71 N.H. 362, is that in the latter cases the evidence disclosed the conduct of the party injured, as he approached the point of danger; and it conclusively appeared that he went upon the crossing without any effort to ascertain whether a train was coming, and there was no evidence excusing or explaining his conduct. In Smith v. Railroad and the present case, the conduct of the deceased as he approached the crossing is not disclosed by direct evidence. Upon this question his custom and habit is evidence, and from such evidence the exercise of care may be found, if it does not conclusively appear that in the particular instance such custom was not observed. Stone v. Railroad, 72 N.H. 206.
Exceptions overruled.
All concurred.