Grows v. Maine Cent. R. Co.

• Citation: 67 Me. 100
• Parties: WILLIAM W. GROWS v. MAINE CENTRAL RAILROAD CO.
• Decision Date: 31 May 1877
• Court: Maine Supreme Court

67 Me. 100

WILLIAM W. GROWS v. MAINE CENTRAL RAILROAD CO.

Supreme Judicial Court of Maine.

May 31, 1877

ON EXCEPTIONS from the superior court.

TRESPASS ON THE CASE, for that, on the thirtieth day of November in the year of our Lord eighteen hundred and seventy-four, at said Brunswick there was an open way leading from the old turnpike road, so called, and from a point near the dwelling house of the plaintiff to a point in the highway leading from Brunswick village to Bath, near to Haines' brook, which said way was crossed by the railroad of the defendant corporation upon the same level, upon which said way persons were then and there often passing and repassing on foot and with their teams and carriages. And so much of said way as extended from the old turnpike road aforesaid, to the crossing of said railroad was then and there a lane with fences upon each side thereof so narrow that teams having once entered into the same could not be turned around without great difficulty. And the plaintiff says, that on the thirtieth day of November, aforesaid, he had entered said lane, and was passing upon said way with his horse harnessed to a good and strong team wagon of the value of thirty dollars, upon which he was then riding, and approaching said crossing, and had reached a point about seven rods from said crossing, and about two and one-half rods in a direct line from the track of said railroad, when an engine and train of cars under the direction, management and control of the defendant corporation by its servants and agents, approaching said crossing, came in view about forty rods from said crossing without any warning or signal having been given of their approach thereto. And said plaintiff knowing that he could not turn his said team in said lane, and believing that he could get his said team over and across said crossing before said train would reach the same, and that he could secure his safety in no other way, and supposing said train was approaching at an ordinary rate of speed, urged his said horse forward, and used his utmost exertions to get his said team over said crossing before said train should arrive at the same, which he could well have done if said train had been moving at an ordinary rate of speed. But the plaintiff says that said train was then and there running at an unusually rapid rate of speed, and although the said plaintiff drove his said horse forward very rapidly in his efforts to get safely over said crossing, he was overtaken by said train before his said team had passed entirely over said crossing, and his said wagon was struck by said engine and thereby dashed to pieces, broke and destroyed, and the plaintiff was struck upon his back and thrown by said engine a great distance whereby he was greatly bruised, strained hurt and injured.

And the plaintiff says that in his efforts to get over and across said crossing with his said team he was in the exercise of due and reasonable prudence, care and diligence, and that said defendants were guilty of gross carelessness and negligence in running said train rapidly in its approach to said crossing, and giving no warning or signal of its approach thereto, and in not checking or slacking the speed of said train when they saw that the plaintiff was in danger of being struck by said engine if it continued running as rapidly as it was then moving, whereby, the plaintiff says he has suffered great bodily pain and mental anguish; that he has been rendered unable to labor thereby; that he was for a long time confined to his bed, and although nearly seven months have elapsed since said injury, he is unable still to dress himself without assistance, and he still suffers great pain from the effect of said injury, and must suffer from the effects thereof as long as he shall live; and he has been obliged to incur great expenses by reason of said injury, and suffered great loss, and must hereafter suffer great loss by reason of his inability to labor as before said injury he was wont to do. To the damage of the said plaintiff (as he says) the sum of six thousand dollars.

By agreement, the case was submitted to the law court as upon a demurrer to the declaration filed at the first term, the decision to be the same as if presented on exceptions, to be argued in writing under R. S., c. 77, § 14.

J. H. Drummond and J. O. Winship, for the defendants.

The plaintiff alleges that the defendants were negligent, and that he was in the exercise of prudence and ordinary caution. As he has set out all the circumstances in his declaration, if the facts show that these allegations of negligence on one side and care on the other are not true, the general allegations cannot avail even on demurrer to the declaration. They are conclusions of law and not of fact, and therefore not admitted by the demurrer.

I. When the facts are undisputed, the question whether in a given case the parties have exercised due care or have been guilty of negligence is a question of law.

The question of negligence " includes two questions: 1, whether a particular act has been performed or omitted, and 2, whether the performance or omission of this act was a breach of legal duty. The first is a pure question of fact, the second a pure question of law." Shearman & Redfield on Negligence, § 11. Gavett v. Manchester & Lawrence, 16 Gray 501, 506. Dascomb v. Buffalo & State Line, 27 Barb. 221. Biles v. Holmes, 11 Ired. 16. Avera v. Sexton, 13, Ired. 247. Heathcock v. Pennington, 11 Ired. 640. Herring v. Wilmington Railroad, 10 Ired. 402. See also 53 N.Y. 654; 13 Barb. 9; 4 Vroom, (N. J.) 430; 38 Md. 588. Gahagan v. Boston & Lowell, 1 Allen, 187, 190. Burns v. Boston & Lowell, 101 Mass. 50. Todd v. Old Colony & Fall River, 3 Allen, 18, 22. Lucas v. New Bedford & Taunton, 6 Gray 64. 7 Allen 207. 8 Allen 235. Forsyth v. Boston & Albany, 103 Mass. 510. A distinction is to be taken as to the manner in which the question arises. Cases in which it has been properly held that the question of ordinary care is for the jury are not like this where the facts are established by demurrer. It is a familiar rule of pleading that on demurrer the judgment of the court is prayed, not of the jury. And that judgment should be based upon the plaintiff's case as he states it in his declaration without the aid of supplementary circumstances.

II. The allegations of negligence on the part of the defendants are not in law negligence. The way not being a public way, the defendants were under no legal obligation to signal their approach. They have a right to run their trains at unusual speed. No allegation except by inference that the defendants' servants saw the plantiff at all, and not even by inference that they saw him in season to check the train.

III. The hurt received by the plaintiff was the result of his own criminal recklessness.

F. Adams, for the plaintiff.

Though the way was not laid out under our statutes, it was a way open to travel crossing the railroad on the same level, and the provisions of R. S., c. 51, § 17, are applicable; and even if it were not, the defendants are bound to use care in crossing. A railroad company may comply with all statute requirements, and still have negligence imputed to them. Webb v. Portland & Kennebec, 57 Me. 117. Bradley v. Boston & Maine, 2 Cush. 539. Richardson v. New York Central, 45 N.Y. 846. Beers v. Housatonic Railway, 19 Conn. 566. Pennsylvania Railroad v. Barnett, 59 Pa.St. 259.

The attempt of the plaintiff to cross the track was not per se negligence. Whether it was so or not depended upon the circumstances. Negligence is not a question of law, even when the facts are undisputed, unless there has been a violation of plain legal duty. Pennsylvania Canal Co. v. Bentley, 66 Pa.St. 30.

True, the case being before the court on demurrer, all the facts declared are admitted, but not all that are in the case. It is not necessary to declare all the facts and circumstances. The judgment of the court is prayed whether in substance the plaintiff has stated sufficient material facts to entitle him to recover, provided they with other facts and circumstances which may be proved without being set out, show that the injury was caused through the negligence of the defendants without any contributory want of care on his part.

APPLETON C. J.

This case comes before us upon a demurrer to the plaintiff's declaration. There are, then, no facts in dispute. The facts being admitted, it becomes the duty of the court to apply the law to the facts. It was held by the supreme court of Pennsylvania, in Hoag v. Lake Shore & Michigan Southern R. R. Co., 1 Reporter 89, that, where facts are admitted or established without conflict, the court may declare, as a matter of law, whether such facts do or do not amount to negligence.

The plaintiff being in a narrow fenced lane leading to the crossing over the defendants' railroad, and distant about two and half rods from its track, and perceiving the defendants' train forty rods from but approaching the crossing, he being distant seven rods from the same attempted to cross the track before the train should reach it. His attempt was unsuccessful and he was injured. Hence this suit.

It is negligence to attempt crossing the track of a railroad without looking to see if the cars are approaching. If the traveler does not look and his omission contributes to his injury, he is guilty of such negligence as will bar his recovery, notwithstanding the negligence of those in charge in omitting to sound the whistle or ring the bell. Gorton v. Erie Railway, 45 N.Y. 660. Allyn v. Boston &amp Albany Railroad, 105 Mass. 77. Wheelock v. Boston & Albany Railroad, 105 Mass. 203. Butterfield v. Western Railroad, 10 Allen 532. But it is greater negligence for one seeing...