56 A. 204 (Me. 1903), Withee v. Somerset Traction Co.

Citation:56 A. 204, 98 Me. 61
Opinion Judge:PEABODY, J.
Party Name:WITHEE v. SOMERSET TRACTION CO.
Attorney:Forrest Goodwin, for plaintiff. Geo. W. Gower, for defendant.
Judge Panel:Argued before WISWELL, C.J., and SAVAGE, STROUT, POWERS, PEABODY, and SPEAR, JJ.
Case Date:July 07, 1903
Court:Supreme Judicial Court of Maine
 
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56 A. 204 (Me. 1903)

98 Me. 61

WITHEE

v.

SOMERSET TRACTION CO.

Supreme Judicial Court of Maine.

July 7, 1903

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

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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...

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