Withee v. Somerset Traction Co.

Citation98 Me. 61,56 A. 204
PartiesWITHEE v. SOMERSET TRACTION CO.
Decision Date07 July 1903
CourtSupreme Judicial Court of Maine (US)

(Official.)

On Motion from Supreme Judicial Court, Somerset County.

Action by Milford Withee against the Somerset Traction Company.

The verdict was for plaintiff for $1,472.08. Plaintiff was a conductor on one of defendant's electric cars. The car, which was open, was crowded, and the conductor was collecting fares on the running board when he was struck by a pole at the side of the track, supporting the trolley.

Defendant filed a general motion for a new trial, alleging the usual grounds. Overruled.

Argued before WISWELL, C. J., and SAVAGE, STROUT, POWERS, PEABODY, and SPEAR, JJ.

Forrest Goodwin, for plaintiff.

Geo. W. Gower, for defendant.

PEABODY, J. The plaintiff was a conductor on an electric car used by the defendant corporation on its street railway between Madison village and Skowhegan, in Somerset county, Me. On the 4th day of July, 1900, when performing the duties of his employment, he was struck by one of the poles erected and maintained by the company for supporting the trolley wires.

The action is brought to recover damages for injuries he sustained, and which he alleges were caused by the negligence of his employer, the defendant corporation. The verdict was for the plaintiff for the sum of $1,472.08, and the defendant brings the case to this court on motion for a new trial.

The jury must have found, first, that the defendant was guilty of negligence in reference to the plaintiff in the relation of master and servant; second, that the plaintiff did not assume as a risk incident to his employment the special danger of being hit by this particular pole as it was then located; third, that the plaintiff did not contribute to the accident by failure to use due care.

The facts upon which the question of the alleged negligence of the defendant depends relate to two elements of the proposition.

First, as to the location and other conditions of the trolley pole relative to the track and the car on which the plaintiff was serving the defendant as a conductor.

The distance from the inside of the pole to the outside of the rail was 44 1/4 inches, and to the outer edge of the running board on the side of the car 19 inches less. The pole inclined toward the track 6 1/4 inches at the height of the plaintiff's head as he stood upon the running board, so that at that height the handle bars on the posts of the car were 24 inches from the pole. The average distance from the rail of 381 trolley poles along the line of the road for 12 miles was about 59 1/2 inches. There were 6 (or possibly 9) poles, a fence, and trees, making 18 objects in all which were slightly nearer to the rail than the accident pole; but they were either vertical or inclined from the track, so that at the height of the conductor's head, with the exception of one pole set in the line of trees, this one was nearest, and was about 22 inches nearer than the average. An object at this height, at a point vertically above the outer edge of the running board, would be within 19 inches of this pole.

Second. The other facts relate to the nature of the plaintiff's service, and bear upon the duty which the Somerset Traction Company assumed toward its servant, the plaintiff.

The seating capacity of the open car running at the time of the accident was sufficient for about 50 passengers, but on this day there were from 95 to 100. They were received on the car in accordance with the usual custom and verbal instructions, as appears from the testimony of the plaintiff, the motorman, and a former superintendent of the company. In consequence of the crowded condition of the car, passengers stood upon the platforms at each end and on the running boards on each side.

The trolley poles were placed in different portions of the road on alternate sides, but the greater part on the easterly side of the track, among which was the accident pole. In taking the fares, which was one of the important duties of the conductor, it was impossible or impracticable when the car was crowded, as on this occasion, for him to collect them while standing on the side opposite the passenger. In passing along the running board for that purpose it was necessary to step around passengers standing upon it, and to rely upon the handle bars for support.

The nearness of this inclining pole to the head of the conductor as he was performing this duty was the direct cause of the injury, and whether the location and maintenance of the pole in its position constituted a failure of the master to provide the plaintiff with a reasonably safe place while performing the service required of him was an important question in issue.

There seemed to be reasons why some of the poles were placed nearer than the average distance. For example, those within the line of trees at the Clough place were naturally located at the same distance as the trees; those near the bridge at the same distance as the trestle; and those at the curves might properly be somewhat nearer than the ordinary distance, because the car inclined away from them. But no reason or explanation is given why the trolley pole in question and those immediately north and south were set nearer than was usual along the electric road.

It is claimed in behalf of the plaintiff that the company, by locating this pole and allowing it to remain with a decided inclination toward its cars, fitted with running boards on which passengers were not only permitted but invited to stand when the sitting room was occupied, made it unsafe for the conductor as he passed between the pole and passengers in collecting the fares, and that it was consequently guilty of negligence in reference to him while engaged in the line of his duty. This was properly submitted to the jury for their determination.

In Nugent v. Boston, Concord & Montreal Railroad, 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151, a brakeman, in pursuance of the signal for setting brakes, was rapidly ascending an iron ladder on the side of a box car, and was brought in contact with the end of the depot awning, and suffered injuries.

In his action against the company he recovered a verdict, and upon motion for a new trial it was held that the presiding justice properly submitted to the jury the question of the defendant's negligence, and that of the plaintiff's exercise of ordinary care, and the law court declined to interpose and set the verdict aside.

Illustrations were given by reference to similar cases showing that fairminded men may reasonably arrive at different conclusions...

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10 cases
  • George v. St. Louis & S. F. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 2, 1910
    ......Mansell, 138 Ala. 548 [36 South. 459]; Central Trust Co. v. Railroad [C. C.] 73 Fed. 661; Withee v. Railroad, 98 Me. 61 [56 Atl. 204]; Railroad v. Thompson, 210 Ill. 226 [71 N. E. 328]; Kelleher ......
  • Favre v. Louisville & N. R. Co
    • United States
    • United States State Supreme Court of Mississippi
    • January 24, 1938
    ...& H. R. Co., 35 A. 305; illinois Terminal R. Co. v. Thompson, 71 N.E. 328; Pikesville R. & E. G. R. R. v. State, 42 A. 214; Withee v. Somerset Traction Co., 56 A. 204; L. I. R. R. v. Hardin, 157 W. 15; Hoffmeier v. K. C., L. Railroad, 75 P. 1117; Scanlon v. B. & A. Railroad, 18 N.E. 209; Wa......
  • Charlton v. St. Louis & San Francisco Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1906
    ......Davis, 92 Ala. 300;. Central Trust Co. v. Railroad, 73 F. 661; Wither. v. Somerset Traction Co., 98 Me. 61; Railroad v. Mansell, 138 Ala. 548; Murphy v. Railroad, 115. Mo. ...300;. Railroad v. Mansell, 138 Ala. 548; Central Trust. Co. v. Railroad, 73 F. 661; Withee v. Railroad, . 98 Mo. 61; Railroad v. Thompson, 210 Ill. 226;. Kelleher v. Railroad, 80 Wis. ......
  • George v. St Louis & San Francisco R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 2, 1910
    ...v. Davis, 92 Ala. 300, 9 So. 252; Railroad v. Mansell, 138 Ala. 548, 36 So. 459; Central Trust Co. v. Railroad, 73 F. 661; Withee v. Railroad, 98 Me. 61, 56 A. 204; Railroad v. Thompson, 210 Ill. 226, 71 N.E. Kelleher v. Railroad, 80 Wis. 584, 50 N.W. 942 (the doctrine of this case may not ......
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