15 A. 36 (Me. 1888), State v. Boston & M.R. Co.

Citation:15 A. 36, 80 Me. 430
Opinion Judge:PETERS, C. J.
Party Name:STATE v. BOSTON & M. R. CO. [1]
Attorney:Horace H. Burbank, Co. Atty., for the State. Geo. C. Yeaton and Benj. F. Chadbourne, for defendant.
Judge Panel:WALTON, VIRGIN, LIBBEY, FOSTER, and HASKELL, JJ., concurred.
Case Date:June 19, 1888
Court:Supreme Judicial Court of Maine
 
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Page 36

15 A. 36 (Me. 1888)

80 Me. 430

STATE

v.

BOSTON & M. R. CO. 1

Supreme Judicial Court of Maine.

June 19, 1888

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

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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...

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