and which admissions, at most, are in general | terms, and do not show with reasonable certainty that the agreement was made with his wife, or that her money was actually used to pay for the land, both of which facts must concur in order to establish such a trust."

After a careful review of all the evidence properly to be considered, we are of the opinion that it does not establish the allegations of the bill with that degree of certainty required by the law. The decree will therefore be reversed, and the bill dismissed. Decree reversed, and bill dismissed, the appellees to pay the costs.

5. EXECUTORS AND ADMINISTRATORS (§ 439*) same contract. ACTIONS-CLAIM AGAINST ESTATE --ACTION AGAINST DEVISEE OR LEGATEE-PARTIES. Where the son of a testator took possession of the property, paid his father's debts and legacies, and held the property as his own, an ad

have any interest in or to the property, no ground is perceived upon which it will be held that his administrator is a necessary. party to the trust suit. There is no occa

death, which survived and still exists, and one claiming through Solomon appears to that such administrator should be made party to the pending proceedings against the estates of Greenleaf and Anna. The court found that the plaintiff's delay in asking for the appointment of an administrator sion for the appointment of an administraconstituted laches, and that such appointment was not necessary in aid of the pending proceedings, and dismissed the appeal. To these findings and the decree thereon the plaintiff excepted.

Remick & Jackson, of Concord, for plaintiff. Burleigh & Adams, of Plymouth, and Martin & Howe, of Concord, for defendant.

tor until in some proceeding it is judicially determined that such administrator must be a party.

Exception overruled. All concurred.

(77 N. H. 289)

GAGE v. BOSTON & M. R. R.
SAWYER v. SAME.

(Supreme Court of New Hampshire.
mack. April 1, 1913. On Rehear-
ing, May 7, 1914.)

Merri

1. RAILROADS ($ 346*)-CROSSING ACCIDENTBURDEN OF PROOF.

In an action for injuries from a collision between defendant's train and plaintiffs' automobile at a crossing, plaintiffs must prove that defendant was negligent, and that its negligence was the proximate cause of the injury. [Ed. Note. For other cases, see Railroads,

-WARNING.

A railroad company is not bound, by lights or other signals, to warn travelers that a freight train is crossing a highway at night, unless, in ordinary care, it is bound to give some warning order to discharge its common-law obligation of of such fact.

[Ed. Note. For other cases. see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. § 312.*]

[1-3] YOUNG, J. If a creditor wishes to exercise the right given him by sections 2 and 5, chapter 188, Public Statutes, he must act within a reasonable time after he learns of the death of the debtor. Whidden v. Whidden, 67 N. H. 303, 32 Atl. 152. The plaintiff attempts to excuse his delay of 47 years before beginning this proceeding by saying that he made a contract with Green-Cent. Dig. §§ 1117-1123; Dec. Dig. § 346.*1 leaf, shortly after their father's death, by 2. RAILROADS (§ 312*)-CROSSING ACCIDENTS which his brother, in consideration of his agreement not to enforce his claims against their father's estate, agreed to give the plaintiff all his property at his death. If the plaintiff made this contract, he is bound by it, and in so far as he is concerned Solomon's estate is fully administered. George v. Johnson, 45 N. H. 456. If the plaintiff failed to enforce his claim against Solomon's estate because he thought he had made this contract, though in fact he had In determining the duty of a railroad comnot made it, a different situation is present-pany to warn travelers of the occupancy of a ed; but in that case it does not necessarily highway by its train, where the night was dark, and the cars behind the engine could not be follow that he should be permitted to pro- seen for a great distance, the servants of the ceed against Solomon's estate. That de- railroad company are charged only with the pends in part on the reasonableness of his knowledge of ordinary men with reference to conduct in thinking he had made such a the difficulty of stopping of swiftly driven automobiles. contract, in part on his conduct since that time, and in part on the reasonableness of Greenleaf's conduct. It is useless, however, to consider this question further, for the finding of the court is that he has been guilty of laches.

3. RAILROADS (§ 312*)-CROSSING ACCIDENTS KNOWLEDGE OF RAILROAD COMPANY'S

SERVANTS.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. § 312.*]

4. RAILROADS (§ 348*)-CROSSING ACCIDENTS -ACTIONS EVIDENCE.

In an action against a railroad company for damages for injuries received when the automobile in which plaintiffs were riding was, on a dark night, driven into defendant's train, insufficient to charge defendant's servants with which was crossing the highway, evidence held knowledge that an automobile bearing headlights with sufficient power to enable the driver to avoid obstructions in the road was likely to be run into a train, unless a flagman was stationed by the side of the train with a light or other warning signal.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 5. RAILROADS (§ 337*)-CROSSING ACCIDENTS -PROXIMATE CAUSE.

[4, 5] The necessary parties to any proceeding, regardless of its nature (that is, whether it is in rem, at law, or in equity), are those, and those only, who have an interest in the subject-matter of the suit and whose rights may be concluded by the judgment. Busby v. Littlefield, 31 N. H. 193. Therefore the test to determine who should be made parties to this proceeding, in which the plaintiff is seeking to impress a trust on the property Greenleaf received from his father, is to inquire who have an interest in or to that property. The answer to this question must be: Those and those only who claim through Greenleaf: for he took the property into his possession in 1864, paid his father's debts and legacies, and has since held the property as his own. As no

6. NEGLIGENCE (§ 136*)-PROXIMATE CAUSEJURY QUESTIONS.

While ordinarily the question of proximate cause is one for the jury, it is subject to the limitation that, if reasonable men can come to only one conclusion, there is no question for the jury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 7. NEGLIGENCE (§ 134*)—BURDEN OF PROOF

SCINTILLA OF EVIDENCE.

In an action for negligence, a mere scintilla of evidence is not sufficient to sustain a verdict for plaintiffs, who have the burden of proof.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 88 267-270, 272, 273; Dec. Dig. § 134.*]

8. APPEAL AND ERROR (§ 172*)-CHANGE OF POSITION.

a

Plaintiffs cannot on appeal rely on ground of negligence not relied on below. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1070-1078; Dec. Dig. § 172.*]

Young, J., dissenting.

On Rehearing.

9. TRIAL (329*)-VERDICT-CONFORMITY TO ISSUES.

Where a ground of negligence was not submitted to the jury, a verdict against defendant cannot be sustained on that ground of negligence, even though some evidence in support thereof was introduced.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 774-776, 782; Dec. Dig. § 329.*]

Actions by George C. Gage and Thomas E. Sawyer against the Boston & Maine Railroad Company, which were consolidated. There were verdicts for plaintiffs, and defendant excepted to the denial of its motions for nonsuits and the direction of verdicts in its favor. Exceptions sustained.

Martin & Howe, of Concord, for plaintiffs. Streeter, Demond, Woodworth & Sulloway and William W. Thayer, all of Concord, for

defendant.

WALKER, J. [1] What duty did the defendant owe to the plaintiffs at the time of the collision which it failed to observe, and the breach of which was the proximate cause of the injuries they suffered? The burden was on them to prove that the defendant was negligent in its management of the train at the crossing, and that its negligence in that respect was a proximate cause of the collision. At the trial the plaintiffs' contention was that the defendant's negligence could be found from its omission to provide gates with lights at the crossing, or in not having at that place a crossing tender to warn travelers that the crossing was occupied by the train.

[2] There is no contention that these precautions would be necessary in the daytime, or at any time when the occupation of the crossing by one or more cars would be visible to a traveler in time to allow him to stop before reaching the crossing. When cars are upon a crossing under such circumstances the fact that they are there is a sufficient warning to the traveler upon the highway that he cannot occupy the crossing at the same time. No other signals or warnings are necessary or required in the absence of a statute imposing such a duty upon the rail road. As there is no statute or municipal regulation requiring the defendant to provide lights at this crossing the mere fact that there were none on the night of the accident does not prove the negligence of the defendant. It is merely evidence to be considered on the question of its reasonable conduct under the circumstances existing at the time of the accident. If, in the exercise of due care and prudence with reference to travelers on the highway who were approaching the crossing, other precautions were reasonably necessary than such as were afforded by the presence of the train on the crossThe plaintiffs hired one Spaulding to take ing, the absence of a light might be suththem in his automobile from Franklin to cient evidence of the defendant's negligence. Laconia and return. On the return trip they | Ordinary care in a given case might require left Laconia about 11 o'clock in the evening. that such a signal or an equivalent one Shortly after midnight, at a crossing north should be exhibited as a warning of danger of Tilton, the automobile collided with the to travelers using the highway in a reafourteenth car of a slowly moving freight sonable and proper way at the time of the train of the defendant. There were no gates, accident. Whether such a warning should lights, or crossing tender at the crossing. be given is not conclusively settled in the There was evidence that it was a dark night, negative when it appears that there is no and somewhat foggy, which prevented the statute requiring lights at the crossing in chauffeur from discovering the train upon the question. The common-law obligation of the crossing until he was within about 35 feet exercise of ordinary care by both parties of it. He testified that he was then going when seeking to occupy a railroad crossing about 14 miles an hour, and that when run- at the same time (Gahagan v. Railroad, 70 N. ning at that rate he could bring his machine H. 441, 50 Atl. 146, 55 L. R. A. 426) still reto a stop in about 27 feet, but for some rea-mains, which may require the exhibition of son he was not able to do so at the time of lights for the benefit of the plaintiff under the collision. the circumstances of the particular case.

Case for negligence. The actions were tried together and resulted in verdicts for the plaintiffs. In each case the defendant's motions for a nonsuit and the direction of a verdict in its favor were denied, subject to exception.

"It was the duty of the defendants to use or dinary care in the management of their locomotives and cars at or near the crossing, whether moving or stationary; and for any injury to the plaintiff resulting from such want of care they were liable." Lewis v. Railroad, 60 N. H. 187, 189; Eaton v. Railroad, 129 Mass. 364; Giacomo v. Railroad, 196 Mass. 192, 81 N. E. $99; Houghkirk v. Company, 92 N. Y. 219, 44 Am. Rep. 370; Martin v. Railroad, 20 Misc. Rep. 363, 45 N. Y. Supp. 925: Northern Central Ry. v. Medairy, 86 Md. 168, 37 Atl. 796; Evansville, etc., R. R. v. Clements, 32 Ind. App. 659. 603, 70 N. E. 554; Heddles v. Railway, 74 Wis. 239, 255, 42 N. W. 237: Grand Trunk Ry. v. Ives. 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.

lights. They threw a light ahead so that the driver, as he testified, saw the train when he was about 35 feet from it. The plaintiffs testified that when they first saw the train it was 50 or more feet away. They were going at the rate of about 14 miles an hour, and the driver testified that ordinarily he could stop the machine in about 26 feet when going at that rate. He also testified that as soon as he saw the train he did everything he could to stop but without success until he collided with the car. He was an experienced motorman, and testified for the plaintiffs. Upon this state of the facts there is no explanation or cause assigned why the automobile did not come to a stop before it reached the crossing. The driver saw the train in season to avoid a collision, and resorted to all known means to bring the machine to a stop. He does not say that he miscalculated the distance to the train or the speed at which he was going. In other words, the plaintiffs' claim is that the defendant is liable, although the automobile for some reason did not respond to the ap

the circumstances it ordinarily would have done.

[3-5] The defendant's cars were rightfully occupying the crossing, and the trainmen were exercising due care, so far as the management of the train in approaching and passing over the crossing is concerned. The plaintiffs were not injured by being run in to by the defendant's locomotive, but by running into the defendant's freight car as it was slowly passing over the crossing. They were not injured by any mismanagement of the train. If it is conceded that the trainmen were chargeable with knowl-plication of the brakes as readily as under edge that automobiles were frequently driven over the crossing in the evening, were they also chargeable with knowledge that they were liable to be driven at such a rate of speed that they could not be stopped before reaching the crossing after the cars upon it became visible? Suppose, instead of the place being the intersection of a highway and the railroad, it had been the crossing of two highways, and the plaintiffs had run into the side of a load of logs which were being transported over the crossing; the driver of the logging team would have the same duty to exercise care for the benefit of the plaintiffs that the trainmen had and the care he would be bound to exercise would be commensurate with the apparent danger to travelers on the other highway caused by his occupation of the crossing with a heavily loaded team. If the driver of the approaching automobile could see the obstruction in time to avoid colliding with it, reasonable men could not find that it was the duty of the driver of the team to have a lighted lantern on the side of his load toward the automobile as a warning that the crossing was occupied, or to use some other extraordinary precaution to convey that information. In deciding what, if anything, he ought to do, he would be justified in assuming that the approaching traveler would not unnecessarily run into his load of logs. Gahagan v. Railroad, 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426; Waldron v. Railroad, 71 N. H. 362, 365, 52 Atl. 443; Lord v. Railroad, 74 N. H. 39, 65 Atl. 111.

There was one other witness who testified as an expert chauffeur that, going at the rate of 16 miles an hour, he might not be able to stop his machine inside of 40 feet. This testimony, if true, is of very little account in this case, for it relates to a different machine than the one in question; whether it was a larger or smaller one does not appear. This fact would seem to be important, since it is evident that the weight of a moving vehicle has some relation to its momentum. Besides, the rate of speed the witness was considering was 16 miles an hour, while the plaintiffs, according to their testimony and that of the chauffeur, were going at the rate of 14 miles an hour. What the witness could do with another and different machine going at a different speed is not very important, in view of the uncontradicted statement of the plaintiffs' chauffeur that his lights were of sufficient brilliancy to enable him to come to a stop before running into an obstruction like a freight car in the highway, or that, going at the rate of 14 miles an hour, he could stop in about 26 feet.

In order to charge the defendant with negligence as the cause of the collision, upon the ground that the trainmen did not have the crossing lighted or take some other extraor dinary precaution, it must be held that the jury could find that men of ordinary prudence in charge of the train at the time would have known that an automobile comFor similar reasons, the trainmen in the ing toward the crossing at the rate of 14 case at bar were justified in acting upon the miles an hour, in charge of an experienced assumption that an automobile would not be chauffeur, could not be stopped in going 35 unnecessarily driven into the side of their feet, and would therefore crash into the train. The automobile in which the plain- train, unless they used some special signals

peared that, under all the circumstances, it might reasonably have been expected that such an injury would result. A mere failure to ward against a result which could not have been reasonably expected is not negligence." Davis v. Railway, 93 Wis. 470, 482, 67 N. W. 16, 19 (33 L. R. A. 654, 57 Am. St. Rep. 935).

In order to charge the defendant with neg

It is upon this ground that it is sought to charge the defendant with a duty it did not perform. But why the trainmen should be chargeable with the knowledge that an automobile could not be stopped within a given distance, when the expert chauffeur in charge of the machine said that it could, is not apparent. While they were bound to exercise ligence resulting in personal injury to the ordinary care not to injure others seeking to plaintiff, when both are present and acting use the crossing, their knowledge of the situ- at the time of the collision, it is essential for ation and its attendant danger, upon which the plaintiff to prove that a man of ordinary their duty is based, is the knowledge of the prudence and foresight in the defendant's ordinary man in similar circumstances. Cer- situation would have anticipated that injury tainly it does not include a knowledge as to might naturally result from his act or omisthe time within which an automobile can be sion to one in the plaintiff's situation. Stark stopped not possessed by expert chauffeurs. V. Lancaster, 57 N. H. 88; Gilman v. Noyes, If the trainmen had known that the plain- 57 N. H. 627; Searle v. Parke, 68 N. H. 311, tits were approaching at the rate of 14 34 Atl. 744; McGill v. Company, 70 N. H. miles an hour and that they could see ahead 125, 129, 46 Atl. 684, 85 Am. St. Rep. 618; 35 feet, they would have been justified, upon Gahagan v. Railroad, 70 N. H. 441, 50 Atl. the plaintiffs' evidence, in assuming that they 146, 55 L. R. A. 426; Waldron v. Railroad, would come to a stop before reaching the 71 N. H. 362, 52 Atl. 443; Lord v. Railroad, crossing. Reasonable men could not find oth-74 N. H. 39, 65 Atl. 111; Harriman v. Moore, erwise. The fact that the chauffeur was 74 N. II. 277, 67 Atl. 225; Brown v. Kendall, unable to stop the machine may have been 6 Cush. (Mass.) 292, 296; Hamilton v. Raildue to some accident for which no one is way, 163 Mass., 199, 39 N. E. 1010; Milwauresponsible. The machinery, for some undis-kee, etc.. Ry. v. Kellogg, 94 U. S. 469, 475, 24 closed reason, may not have responded to his efforts to control it as quickly as usual. In view of the statement in the plaintiffs' brief that the chauffeur "understood that his lights would enable him to discover any ob

struction ahead of him in season to avoid a

collision," it would be strange to say that the trainmen were in fault for not understanding that an automobile in charge of a competent chauffeur, driven at the rate of 14 miles an hour, and equipped with such headlights, was liable to run into the side of the train,

Evi

and that it was incumbent on them as rea-
sonable men to take some extraordinary pre-
caution to prevent such a collision.
dence of this character does not warrant the
conclusion that the plaintiffs' injuries were
due to the defendant's negligence.

[6] If the defendant through its agents, the trainmen, in the reasonable management of its train, which was rightfully on the crossing, is not chargeable with knowledge that an automobile, bearing headlights of sufficient power to enable the chauffeur to avoid any obstruction in the road, was yet likely to crash into the train unless a danger signal or flagman with a lighted lantern was stationed in the highway by the side of the train, its omission to provide such safeguards for the plaintiffs' benefit was not the proximate cause of their injuries.

"This case falls clearly within the rule that, where an accident is not the reasonable, natural, and probable result of the situation, which ought to have been foreseen by the defendant in the exercise of the degree of care exacted from a carrier of passengers, no liability follows." Ayers v. Railway, 156 N. Y. 104, 108,

50 N. E. 960, 962.

"It was not enough to entitle the plaintiff to recover to show that his injury was the natural consequence of the negligent act or omis

L. Ed. 256.

[7] While the question of proximate cause, including the question of the defendant's duty of anticipating or foreseeing that the result might naturally happen, is ordinarily one of fact for the jury, this rule "is necessarily subject to the limitation affecting the submission of all questions of fact to the jury: That if on the evidence reasonable men can come to only one conclusion, there is no question for their decision." McGill v. Company, 70 N. H. 125, 129, 46 Atl. 684, 686 (85 Am. St. Rep. 618). And when, as in this case, it cannot be said that the defendant was chargeable with knowledge that for some undisclosed cause an automobile was likely to run into its train on the crossing. the jury is not permitted to find that the defendant's act or omission to act was the cause of the plaintiff's' injuries. "From the fact of injury no presumption arises as to the guilt or innocence of either party." Gahagan v. Railroad, supra, 70 N. H. 444, 50 Atl. 148, 55 L. R. A. 426.

In order to charge the defendant, it must be found from some substantial evidence that its servants, in the exercise of ordinary care, would have understood that they were maintaining at the crossing an obstruction which, on account of the darkness, was a dangerous obstruction to people riding in an automobile, driven at a reasonable rate of speed and equipped with strong lights. To hold that such evidence exists in this case is to overturn the rule that a verdict based upon conjecture cannot stand (Deschenes v. Railroad, 69 N. H. 285, 46 Atl. 467; Reynolds v. Fibre Co., 73 N. H. 126, 59 Atl. 615), or that a mere scintilla of evidence is not sufficient to sustain the burden of proof in