McDonald v. Boston & M. R. R.

• Decision Date: 20 April 1895
• Citation: 87 Me. 466,32 A. 1010
• Parties: McDONALD v. BOSTON & M. R. R.
• Court: Maine Supreme Court

32 A. 1010

87 Me. 466

McDONALD

v. BOSTON & M. R. R.

Supreme Judicial Court of Maine.

April 20, 1895.

(Official.)

Exceptions from supreme judicial court, York county.

Action by Stephen McDonald against the Boston & Maine Railroad. There was a verdict for plaintiff, and defendant moves for a new trial on exceptions. Motion sustained.

This was an action on the case, in which the plaintiff recovered a verdict for injuries received by him in alighting from the defendant's passenger train.

The acts of negligence by the defendant, as alleged by the plaintiff, were in that while he was alighting from said train the defendant carelessly, negligently, and violently started, and caused to be started, said train, throwing the plaintiff from said train suddenly and violently to the platform, and not stopping the train sufficiently long for him to get out.

Plea was the general issue After all the evidence in the case had been taken out before the jury, counsel for defendant moved the court to direct a verdict in its favor, which the court refused to do, and to this refusal the defendant excepted. After the verdict for the plaintiff, the defendant also filed a general motion for a new trial.

The facts, as claimed by plaintiff, were as follows:

About 7 p. m., July 25, 1893, he purchased a ticket at defendant's station at Saco, and took the train for Old Orchard. Before reaching that station the train stopped at the station of Camp Ground, which was previously announced. No actual notice had been given by plaintiff to any of the trainmen that he intended or desired to stop there. He started, however, to leave the train, he says, as soon as it stopped, going towards the door in the forward end of the car, and when he reached the door he discovered that the train was in motion. He passed out upon the car platform, when, he says, the conductor told him to "jump with the train." He jumped, and was injured by falling upon the station platform, and dislocating his left hip joint. He was about 50 years of age, and had a basket containing groceries. Rain had fallen, and the platform of the station was damp.

Defendant claimed that the facts were as follows:

Plaintiff's ticket being for Old Orchard, it had no actual and no seasonable, constructive notice that he wished to terminate his journey elsewhere; that the train, however, did stop at Camp Ground, that station having been previously announced through the train, long enough to permit all to get out, of whose intention so to do it had, or, exercising reasonable diligence and care, could obtain, seasonable notice, and also long enough for those desiring to get in; that in fact two other persons did get out, and one got in, during the stop, which was from three-quarters of a minute to a minute; that before starting the train the brakeman looked through the door and the aisle of the rear car, where plaintiff was, and also into the car ahead of it, and saw no one, either in the aisles, or making any preparation to get out, then gave the signal to the conductor, who was upon the station platform, and who, after receiving a similar signal from the train baggage master, signaled the engineer to start, which he did, without jerk, and in the usual manner.

The conductor then stepped upon the car platform, and was about to enter the rear door of the car immediately ahead of the rear car, when, partially turning, he saw plaintiff upon the platform, with basket in both hands, about to jump. He shouted to him, "Don't jump sideways." Plaintiff did jump, and was injured.

B. P. Hamilton, B. P. Cleaves, and C. S. Hamilton, for plaintiff.

WHITEHOUSE, J. The plaintiff obtained a verdict for $1,500 against the defendant for an injury sustained by jumping from a moving train at Camp Ground station, between Saco and Old Orchard. The negligence imputed to the defendant was its failure to stop the train a sufficient length of time to enable the plaintiff, in the exercise of reasonable diligence, to alight before the train proceeded. The plaintiff also claimed that in jumping from the train he acted under the direction of the conductor. The case comes to this court on a motion to set aside the verdict, as against evidence, and exceptions to the refusal of the presiding justice to direct a verdict for the defendant.

It is the opinion of the court that the verdict cannot be allowed to stand, on the evidence reported. The plaintiff fails to establish either the defendant's negligence, or his own due care.

On the evening of July 25, 1893, the plaintiff purchased a ticket at Saco for "Old Orchard and return," and took the local train, leaving the former station about 7 o'clock, intending to stop at the intervening station, called "Camp Ground" for which no tickets were specially provided. The train stopped there long enough for two passengers to alight, and one woman to get aboard the train. The plaintiff was in the rear passenger car. He started to leave the train at some time after it stopped, and when he reached the forward end of his car he discovered that the train was in motion. He passed out upon the car platform, when the conductor, according to the plaintiff's testimony, said to him, ...