State v Boston & M. E. Co.

• Decision Date: 19 June 1888
• Citation: 80 Me. 430,15 A. 36
• Parties: STATE v BOSTON & M. E. Co.
• Court: Maine Supreme Court

15 A. 36

80 Me. 430

STATE v BOSTON & M. E. Co.¹

Supreme Judicial Court of Maine.

June 19, 1888.

Indictment under the statute for the instantaneous death of William M. Benjamin, alleged to have been caused by the defendant's negligence. After the plaintiff's evidence was out, the case was reported to the law court, with the stipulation that the plaintiff should recover, if the facts would in any event authorize a jury to find a verdict in its favor.

Horace H. Burbank, Co. Atty., for the State. Geo. C. Yeaton and Benj. F. Chadbourne, for defendant.

PETERS, C. J. After the plaintiff's evidence was out in this case, it was agreed by the parties that if such evidence be, in the opinion of the full court, sufficient to authorize a jury in any event to find for the plaintiff, a judgment may be entered against the defendants for the sum of $5,000. Allowing to the plaintiff, under this stipulation, the benefit of the most favorable view which the evidence is legally susceptible of, it may be considered that the following facts are proved: The deceased, William M. Benjamin, for whose death the action is instituted in the name of the state, and two other men, of the names of Burnie and Hooper, the latter owning and driving the team, were sitting in an open, one-seated wagon, and approaching at a moderate gait, or "very slowly," a level crossing of defendant's railroad over the highway in Biddeford. It was at about 10 o'clock on a starlight night in November, 1886. The railroad and town road intersect at about a right angle. The three were persons of middle age, with physical faculties unimpaired, sober and intelligent, and were returning home from a lodge meeting of some kind over a road familiar to all of them. When within about 350 feet of the crossing, a locomotive whistle was heard, but no bell was heard by them at any time. The bell was heard by others at the moment when the locomotive was passing the crossing, the train at the time running at a rate of not less than 25 miles an hour through a compact portion of the city of Biddeford. When the whistle was heard, Burnie called Hooper's attention to it, and Hooper said he did not know which road it was on, meaning whether on the Boston & Maine or Eastern Railroad. Burnie replied that he could not tell from the sound which road it was on. The deceased said nothing, and nothing more was said by either of them. The team moved on without stopping, and almost immediately it reached the Boston & Maine track, when a collision took place between locomotive and team by which two of the three men were almost instantly killed. The way on which the parties were traveling was slightly descending towards the crossing, and a view of the coming train was mostly obstructed from the travelers by houses and other structures, and the plans and photographs show that there may have been no opportunity for the travelers to see the train, situated as they were while in motion.

The defendants contend that the travelers did not look and listen after their interchange of words about the direction of the sound from the whistle. We think a jury would be justified in the belief that they did. On this point the survivor was not very explicit in his testimony, but he was not asked about it, nor was he at all exhaustively examined. The men did not in fact see the locomotive until they were within an estimated distance of 15 feet from the track,—the train being about 100 feet away,—and a collision may not then have been avoidable. At the place where the whistle was sounded the two railroads were within 300 feet of touching together, then diverging until at the crossing they were about 1,000 feet apart, the Eastern being the furthest away. It is reasonable to believe that the three men, as they approached the crossing, saw that the gates there were open and unattended by any person, and that there was no signal of any kind indicating that a train was expected. A red light was burning, the usual switch signal, which was not any warning to those using the common roads. The gates were of the double-arm pattern, operating on pivots on each side of the highway,—when open the arms standing erect,—and these had been in use at this crossing for about three years. An employe was in daily attendance upon them from 7 o'clock A. M. until about 15 minutes after 7 P. M., when he usually locked the gates and left them for the night, doing so on the night of the catastrophe. The train which struck the wagon was the regular night Pullman train running from Boston to Bangor, on the Boston & Maine road. This train has run most of the time for many years over the Eastern Railroad, but had been running over the Boston & Maine road for about a month before the accident, and has also run on the same road for a period of eight months during the year before the accident. The two roads were managed by the same company. The survivor, and the same thing may be fairly assumed of his associates, had seen that the gates were in operation at the crossing, but had never noticed that they were not at all times used when trains were passing. They supposed that they were so used. The flag-man in the railroad employment testified that, when for any reason the gates were out of order, he used a green lantern by night and a yellow flag by day whenever a train passed.

It is not denied that the defendants were themselves guilty of negligence. They were running their train at a rate of speed upwards of four times the rate allowed by law. Chapter 377 of the Acts of 1885 prohibits a train running across a highway near the compact part of a town at a speed greater than six miles an hour, unless the parties operating the railroad maintain a flagman or a gate at the crossing. Had not the defendants been remiss in the discharge of this statutory duty, it is reasonable to conclude that the accident would not have happened. Nor would the accident have occurred, the defendants contend, if the deceased had not also been guilty of negligence. Great stress is placed by the defendant's counsel upon the position taken for his clients that the three men did not look and listen for the location of the train, or, if they did, that they paid no heed to the signals which their ears revealed to them. It certainly cannot be denied that it was an egregious blunder for the team to continue moving on so near the crossing, while the occupants could not tell from which railroad the sound of the whistle proceeded, unless other facts furnish an excuse for not stopping. The team should have halted. The very doubt felt by the men was notice enough of danger, unless they were, without their own fault, deceived by the surrounding circumstances. The plaintiff's counsel insists that such excuse exists. It is contended on that side of the case that, taking into consideration that the train was not seen, though the deceased and his associates must have been intent upon their situation, as evidenced by their sudden silence as they were advancing on their way after their interchange of views on the subject, and considering also the fact that they had much reason to suppose that the Pullman train belonged upon the most distant road, the sight of the uplifted arms of the gates was evidence enough to dissolve the doubt in the minds of those men, and to induce them to believe that they could safely continue on without interruption. The plaintiff contends that such was the judgment of the three men, who for intelligence and experience would average well with men generally. The counsel for the defendants contends that the standing arms indicating open gates should not be regarded as any signal, or a sufficient signal, of safety, at any crossing where the law does not require gates to be maintained. At this place the gates were erected by the voluntary act of the company. But it is not a fair construction of the statute to say that it does not require gates to be maintained, or a flag-man to be present, at all grade crossings, as to trains moving more rapidly at such places than six miles an hour. And while a neglect of the company to perform its duties does not excuse the traveler in a neglect of the duties and degree of care which the law imposes on him, still, in making his calculation for crossing a railroad track safely, he is often justified in placing some reliance on a supposition that the company will perform the obligation resting on it, where there is no indication that it will do the contrary. If the gates were open and the crossing unattended by a flag-man, then these persons had a right to accept the fact as some evidence that the train would not attempt to pass the crossing at a faster speed than six miles an hour. Of course, full reliance cannot always be placed on an expectation that a railroad company will perform its duties, when there is any temptation to neglect them, because experience teaches us that it would not be practicable to do so. But such an expectation has some weight in the calculation of chances, greater or less according to the circumstances. But what essential difference can it make in the relation of the parties whether the statute requires a flag-man at any point or whether absolute necessity requires one,—whether the legislature declares the necessity, or the company by its act confesses the necessity? The defendants, by their counsel, contend that the English and the New York authorities, cited by plaintiff, are based upon a statutory requirement that gates shall be maintained. That is not entirely correct. In a leading case (Stapley v. Railway Co., L. R. 1 Exch. 21) it was said that while there was no law requiring gates as to foot passengers, still the decision was that the footman in that case was fairly invited by the open gates seen by him to attempt a passage across the tracks. Nor do we find that the New York cases place the responsibilities of railroads wholly on what the statute law requires of them as to guards at crossings....