Smith v. Maine Cent. R. Co.

Decision Date20 March 1895
Citation32 A. 967,87 Me. 339
PartiesSMITH v. MAINE CENT. R. CO.
CourtMaine Supreme Court

(Official.)

Action for personal injuries by Walter C. Smith against the Maine Central Railroad Company. Verdict for plaintiff, and defendant moves for a now trial. Motion granted.

This was an action on the case, in which the plaintiff recovered a verdict for personal injuries received in a collision of his carriage with the defendant's freight train, consisting of four freight cars and one saloon car, while making a flying switch after dark at the Summer street crossing, near defendant's station in Foxcroft, Piscataquis county, in the evening of November 23, 1891.

The principal allegations of negligence charged in the plaintiff's declaration were the running the train in this way, with the locomotive behind, and without either a gate, or a flagman or any person at the crossing to give signals, as follows: "When said plaintiff was crossing the said side track of said railroad, which said side track crossed the highway aforesaid, near said station and yard, said four cars, without any engine attached thereto, or any signal or warning given of their approach, which said cars belonged to, and were under the management, direction, and control of, said defendant corporation, and were run by said defendant corporation, ran into and over the carriage in which said plaintiff was then and there riding, and threw the plaintiff, with great violence and force, upon the ground, and ran over him. * * *

"And the plaintiff says that the defendant corporation was guilty of great negligence and carelessness, and that in consequence of said negligence and carelessness he, said plaintiff, was run over and injured as aforesaid. And the plaintiff further says that said corporation gave no proper and legal notice or warning of the approach and passing of said cars across said highway at the time of said injuries, nor did they in any manner give any legal and proper caution to travelers of the existence of said railroad crossing, and took no proper precaution to warn travelers of the approach of said cars and to protect them from harm and injury, as was their duty to do, and that said defendant corporation were guilty of great carelessness and negligence in the management of said railroad and the trains run upon the same, in running said train into said station in the manner aforesaid, and in not giving notice and warning as aforesaid, and in not guarding properly against collision with those who were crossing said railroad over said highway, whereby said plaintiff was injured as aforesaid."

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 au 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 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 2,130 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 Slimmer 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 track by force of their own gravity; the engine following along on the siding, and thence onto the main track again, in. the rear of the cars. The train then proceeded down the main line, across North street and Spring street, until it came to the switch 50 feet easterly from Spring street, which controls the junction of the side track with the main line, where it went onto the side track towards the place of the accident; the engine being from 100 to 200 feet in the rear of the cars, with the bell continually ringing. On the top of the head car, at the front, as the train proceeded, a brakeman with a lantern was stationed by the brake. There was another brakeman at the brake on the front end of the combination car, and the conductor was also in that car.

The combination car had twelve windows on each side, and the interior was lighted by six large lamps. It was also provided with two large rear lamps, on the outside, set in brackets, five or six inches from the car, with reflectors showing red light from the rear and white from the front. The engine showed its headlight as it followed along behind the cars.

The speed of this train on the comparatively level grade east of Spring street does not appear to have exceeded four miles an hour.

In the meantime the plaintiff and Ryder were approaching on the highway leading into Summer street. It was cloudy and dark, with an occasional light fall of rain, and the curtains of the top buggy were closed at the back and on the sides; but the occupants of the carriage were so boisterous as to attract the special attention of three witnesses who saw the team at points from three to four miles north of the railroad station, and heard the men "hollering and singing, and whipping up the horses." One of these witnesses says when he saw them they were driving "very reckless and fast." Two other witnesses saw the team and heard similar noises only a mile and a half distant from the station. But the plaintiff and Ryder say they drank but twice of the whisky, and only once of the wine, and deny that they were at all under the influence of liquor when they arrived at the station. According to their testimony, they were driving very slowly as they drew near the defendant's station, and when within 150 feet, or less, of the Bangor & Aroostook track, they saw the lights in and about the station buildings and on the covered platform, and recognized the Maine Central station. They were familiar with the location of the Bangor & Aroostook Railroad, but drove across that track without stopping to look or...

To continue reading

Request your trial
52 cases
  • Gulf, M. & N. R. Co. v. Brown
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1925
    ......R. A. 594; Dean v. Railroad Co., 129. Pa. 514, 18 A. 718, 6 L. R. A. 143; [138 Miss. 41] Smith. v. Railroad Co., 87 Me. 350, 32 A. 967; Murdock v. Railroad Co., 77 Miss. 487, 20 So. 25; I. ......
  • Wheeler v. Oregon Railroad & Navigation Co.
    • United States
    • United States State Supreme Court of Idaho
    • April 27, 1909
    ...... 161, 31 P. 834; Woolf v. Wash. R. & Nav. Co., 37. Wash. 491, [16 Idaho 378] 79 P. 997; Smith, Admr., v. Norfolk & Western Ry., 107 Va. 725, 60 S.E. 56;. Dryden v. Penn. R. Co., 211 Pa. ... stop, look and listen. ( Brickell v. New York Cent. R. Co., 120 N.Y. 290, 17 Am. St. 648; 24 N.E. 449;. Fechley v. Springfield Traction Co., 119 ...Louisville etc. R. Co., 128. Ind. 97, 25 Am. St. 416, 27 N.E. 339; Smith v. Maine. Central R. Co., 87 Me. 339, 32 A. 967; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. ......
  • Key v. Carolina & N. W. Ry. Co, 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...193 Mass. 309, 323, 79 N. E. 873, 877, 878, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402; Smith v. Main Central R. Co., 87 Me. 339, 32 A. 967: Whitman v. Fisher, 98 Me. 575, 57 A. 895: Brickell v. New York, etc., R. Co., 120 N. Y. 290, 24 N. E. 449, 17 Am. St. Rep. 648; Bro......
  • Sluder v. St. Louis Transit Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 1, 1905
    ...... danger, and avoid it if possible. Smith v. Railroad. (Me.), 32 A. 967; Railroad v. McLeod, 29 So. 76; Brannen v. Railroad, 115 Ind. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT