32 A. 967 (Me. 1895), Smith v. Maine Cent. R. Co.

Citation:32 A. 967, 87 Me. 339
Opinion Judge:WHITEHOUSE, J.
Party Name:SMITH v. MAINE CENT. R. CO.
Attorney:Henry Hudson and Frank E. Guernsey, for plaintiff. C. F. Woodard and J. B. Peaks, for defendant.
Case Date:March 20, 1895
Court:Supreme Judicial Court of Maine
 
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Page 967

32 A. 967 (Me. 1895)

87 Me. 339

SMITH

v.

MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

March 20, 1895

Page 968

Henry Hudson and Frank E. Guernsey, for plaintiff.

C. F. Woodard and J. B. Peaks, for defendant.

WHITEHOUSE, J.

The plaintiff recovered a verdict of $4,191 for a personal injury received in a collision of the defendant's cars with the carriage in which the plaintiff was riding, at the Summer street crossing, near the defendant's station in Foxcroft, on the 23d day of November, 1891; and the case comes to the law court on a motion to set aside this verdict, as against evidence, and for newly-discovered evidence.

It is the opinion of the court that, under the settled law of this state, the verdict was not justified by the evidence introduced at the trial, and cannot be permitted to stand.

The accident occurred on the arrival of the defendant's mixed train at its terminal station in Foxcroft, a few minutes past 6 o'clock in the evening. The plaintiff, a resident of Brownville, had accepted an invitation from Louis H. Ryder, of that place, to ride with him to Monson, by way of Foxcroft and Dover. They had for a team a pair of heavy, old work horses, and a top buggy. The plaintiff was 27 years of age, and after his return from Massachusetts, in September, had been working for his father, trucking about the depot at Brownville. Ryder was a stable keeper, 31 years of age, who was seeking an opportunity to exchange the two old horses for a driving horse. They started about 2 o'clock in the afternoon, but called at the Brownville station, and obtained a box containing a two-quart jug of Tarragona port wine, and a bottle containing from a pint and a half to a quart of Irish whisky. This box was opened about a mile and a half from Brownville. They drove to Milo, a distance of four miles, in about an hour; from Milo to South Sebec, five miles, in about an hour and a quarter; and from South Sebec to Foxcroft, seven miles, in about an hour,--having made three stops on the way, of about 15 minutes each. They approached Foxcroft in a southerly direction, along the thoroughfare there known as "Summer Street." This highway passes by the westerly end of the Maine Central station grounds, and there intersects four railroad tracks: First, the main track of the Bangor & Aroostook Railroad; second, 43 feet southerly therefrom, the main track of the defendant company; third, 53 feet from its main track, the defendant's side track, and, 3 1/2 feet further south, the defendant's second side track. The collision took place on the defendant's side track, 53 feet southerly from its main line, on Summer street, as stated. This street, as it approaches and crosses these several railroad tracks, is practically level.

The next street westerly from Summer street is Spring street, which is 325 feet distant from Summer street, measured on the

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defendant's main line, or 245 feet measured along the side track. The next street westerly is called "North Street," which is 507 feet distant from Spring street. Mechanic street is next westerly from North street, 870 feet distant from it; and the spool factory is 517 feet westerly of Mechanic street.

The railroad track is on a down grade from the spool factory to North street, with a descent of little more than a foot in a hundred, while from North street to Summer street the grade falls only 4 4/5 inches.

The defendant's railroad is plainly visible from the scene of the accident up to the spool factory, a distance of 2,139 feet. The entire line back to the spool factory may also be plainly seen from a point in Summer street 180 feet northerly from the place of collision, and all the way, along which the plaintiff was approaching, from that point to the place of the collision. From a point in Summer street 260 feet northerly from the place of the accident, and all the way from that point to the scene of the accident, there is an unobstructed view of the track as far west as Spring street.

Such being the situation on the evening of the accident, the defendant's mixed train, consisting of an engine with four freight cars, and one combination car with a passenger compartment containing six or eight passengers, arrived at the outer limits of the railroad yard, some 30 rods west of the spool factory, about 6 o'clock, being substantially on schedule time. The whistle was sounded as usual at the spool factory, and thereafter the bell on the engine was continuously rung until the time of the accident. The train came to a full stop at Mechanic street, and there, in accordance with an established usage, in order that the cars might be run down across Summer street into the station grounds in advance of the engine, and thus be left in a situation convenient and available for use thereafter, the engine was detached and run onto a long siding, while the five cars, the brakes being relieved, ran down on the main...

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