State v. Me. Cent. R. Co.

• Decision Date: 01 December 1885
• Citation: 1 A. 673
• Parties: STATE v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

1 A. 673

STATE

v. MAINE CENT. R. CO.¹

SUPREME COURT OF MAINE.

Filed December 1, 1885.

On motion from superior court, Kennebec county.

This was an indictment against the defendant corporation, brought under section 68 of chapter 51 of the Revised Statutes of Maine to recover the forfeiture therein specified, for the death of one Benner, who was instantly killed by a passenger train of the defendant as he was attempting to drive over Greenville street crossing in Hallowell. The jury returned a verdict of guilty, and assessed damages in the sum of $2,245.83 1/3. The defendant thereupon filed a motion for a new trial, on the ground that the verdict was against the evidence, and by agreement of counsel the decision of the law court was to be final.

W. T. Haines, Co. Atty., and F. E. Beane, for the State.

Leslie C. Cornish, (67. C. Vose with him,) for defendant.

FOSTER, J. The indictment in this case is against the Maine Central Railroad Company for negligently causing the death of one Henry Benner on the seventeenth day of June, 1884, at Greenville street crossing in the city of Hallowell. About 4 o'clock in the afternoon of that day the deceased was passing up Greenville street seated upon the body of a four-wheel empty dump-cart, hauled by one horse, and in attempting to cross the railroad was struck by the regular afternoon passenger train, and instantly killed. A trial has been had, a verdict of guilty returned by the jury against the railroad, and the case now comes before this court on motion to set aside the verdict as against evidence; and from a careful examination of the case we have no doubt that the verdict is wrong, and cannot be sustained by the evidence, and must therefore be set aside.

The principles of law pertaining to actions of this nature have been so recently discussed and laid down in State v. Maine Cent. R. Co., 76 Me. 357, and Lesan v. Same, 77 Me. 85, that it is hardly necessary to recur to them at this time. It is now the established law, not only of this court, but of the highest courts in this country, that, in order to entitle a recovery in this class of actions, whether in form civil or criminal, it must be affirmatively shown that the defendants were guilty of negligence; that their negligence was the cause of the accident; and that the injured party was in the exercise of due care and diligence at the time of the injury, or, at least, that the want of such care on his part in no way contributed to produce it. It is not enough to show that the defendants were negligent. That may be true, and at the same time the injured party may have been negligent, and by such negligence on his part may have contributed to produce the injury complained of. In. such case the law affords no redress. It is incumbent on the prosecuting party to go further, and, directly or indirectly, by affirmative proof, satisfy the jury that no want of due care on the part of the injured party, who seeks to recover compensation, helped to produce the accident.

Applying these rules of law to the case under consideration, and from an examination of the evidence before us, we do not find the mere want of proof on the part of the prosecution to establish due care, but, on the contrary, the evidence overwhelmingly preponderates in affirmatively establishing contributory negligence, amounting to even sheer recklessness, on the part of the deceased. This is not a case where evidence is wanting as to the circumstances attending the accident, or the manner in which it happened. It is conclusively shown that the deceased was entirely familiar with the crossing and its surroundings, and had been for six months prior to the accident. Living in the immediate vicinity, he had been accustomed to cross and recross the railroad at that point several times each day, and at the time of the accident, and for three days prior thereto, he was engaged in hauling dirt from a bank about 75 rods west of this crossing to a place about the same distance east of it, and passing over it quite frequently. At the time of the accident the deceased was riding upon an empty dump-cart fastened to the axle of the hind wheels, the front of which came up to within about three and one-half feet of the forward axle, so that there was a considerable space between himself and the horse he was driving. The evidence is conclusive and uncontradicted that the whistle was sounded at the regular whistling post, about 100 rods below the Greenville street crossing, and that the bell was rung continuously from that point to the crossing where the accident occurred, and beyond. There were at least three witnesses to the accident, aside from those upon the moving train. Collins, one of the witnesses who was present and within a few feet of the deceased...