Cameron v. Lewiston, B. & B. St. Ry.

• Decision Date: 25 February 1908
• Citation: 70 A. 534,103 Me. 482
• Parties: CAMERON v. LEWISTON, B. & B. ST. RY.
• Court: Maine Supreme Court

70 A. 534

103 Me. 482

CAMERON

v. LEWISTON, B. & B. ST. RY.

Supreme Judicial Court of Maine.

Feb. 25, 1908.

(Official.)

On Motion from Supreme Judicial Court, Sagadahoc County.

Action on the case by Clara W. Cameron against the Lewiston, Brunswick & Bath Street Railway. Verdict for plaintiff, and defendant moves to set the same aside. Motion overruled.

Action on the case brought by the plaintiff as administratrix of the estate of her husband, Lewis Cameron, to recover damages sustained by her said husband while a passenger on one of the defendant's street cars on lower Washington street, Bath, caused by the alleged negligence of the defendant, and which said injuries subsequently resulted in the death of the plaintiff's intestate. Plea the general issue.

The declaration in the plaintiff's writ was as follows:

"In a plea of the case, for that the defendant is, and on the 3d day of July, 1906, was, a corporation owning and operating a street railway in said Bath, and using in its business cars driven by electricity, by the trolley system, through a street, in said Bath, known as lower Washington street. And said intestate on said 3d day of July, 1906, was a passenger on one of the defendant's open cars, then running on said street in a northerly direction, and was lawfully standing on and moving along the running board of said car, and while he was so standing and moving, and when said car was passing a certain trolley pole, near Weeks street, which was then and there supporting the defendant's trolleywire, and slanting towards the defendant's track, and situated in such close and dangerous proximity to said track, that there was no room for a person, though in the exercise of due care, to stand between said car and said pole without being struck by the latter, said intestate, who was in the exercise of due care and caution, was violently struck by said pole, and thrown to the ground, and solely as a result of the injuries he thus sustained he thereafter suffered great pain, was put to great expense for medical care and treatment, and on the 15th day of July, 1906, he died. The plaintiff further avers that said car was not then furnished with a guard rail on the side of said pole, or any other shield or protection between the passenger on said car and said pole, and that said injury to said intestate and his subsequent suffering and death, and the expense incurred as aforesaid we're caused solely by the negligence of the defendant in maintaining its said track, and in running its said car in dangerous proximity to said pole, as aforesaid, and without the protection which would have been afforded by a guard rail or other shield, and were in no respect due to any negligence or want of care of said intestate, all of which suffering and expense were to the damage of said intestate, in his lifetime, in the sum of $10,000, which sum the defendant has never paid to said intestate or to the plaintiff since his decease, and which shall then and there be made to appear with other due damages."

Tried at the August term, 1907, of the Supreme Judicial Court, Sagadahoc county. Verdict for plaintiff for $2,875. The defendant then filed a general motion to have the verdict set aside.

The case appears in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Barret Potter and A. N. Williams, for plaintiff.

W. H. Newell, for defendant.

SPEAR, J. This case involves an action for damages by the plaintiff, as administratrix, for injuries received by her husband while riding as a passenger upon the defendant's car on lower Washington street, in the city of Bath, alleged to have been caused by the defendant's negligence.

The facts show that the plaintiff's intestate boarded an open car going northerly toward Bath in the early evening. At first he sat upon one of the rear seats. He sat for a minute or so. Then, while the car was in motion, stepped to the running board on the pole side of the car for the apparent purpose of taking a seat nearer the front. In so doing he was struck by a trolley pole, and was so injured by the impact that he died in 11 days. The seating capacity of the car was 72. There were upon it from 10 to 20' passengers. The side of the pole toward the track was 30% inches from the east rail at the ground. It leaned toward the track so that 6 feet up it was 28% inches to a point vertically above the east side of the east rail; that is, the pole leaned 2 inches in 6 feet. The car was 7 feet 9 inches wide, the running board 8 1/2 inches wide, 16 1/2 inches from the ground, and 16 inches below the floor of the car. It was 3 1/2 inches from the running board to the pole. At a distance of 5 1/2 feet above the running board it was 8 1/2 inches from the grab handle to the pole. As the handle projected outward from the side of the car 3 1/2 inches, it was exactly one foot from the side of the car between the grab handles and the pole, 5 1/2 feet above the running board. The decedent was about 5 1/2 feet in height and weighed about 160 pounds. The car was going at a reasonable rate of speed. The track is laid on the easterly side of the street; the highway travel being westerly of the track.

The deceased was a spar manufacturer with his place of business on the same side of the street as the track. His residence where he had lived four or five years prior to the accident was on the same side of the street, and both were a short distance only from the trolley pole by which he was injured. He frequently rode past it on the car to the city.

There is so little conflict between the testimony of the plaintiff and the defendant with respect to the above statement of facts that, for the purposes of consideration in this case, they may be regarded as undisputed. In favor of a verdict, the court will sustain every inference of fact that can be deduced from the evidence, when considered in the light most favorable to the contention of the winning party.

Therefore, in addition to the conceded facts, the jury were also authorized to find from the evidence that the plaintiff's intestate in attempting to move from one seat in the car to another was standing erect upon the running board when struck by the pole, and, in all other respects, in the exercise of due care, if the act itself, however carefully performed, was not negligence, per se; that at the height of a man's head and shoulders above the running board the distance was only 8 1/2 inches between the grab handles and the pole, or one foot between the side of the car and the pole; that while the car was passing that pole a man of ordinary size, or even less, standing on the running board and facing the direction in which the car was going, could not, however closely he clung to the side of the car, avoid a collision with the pole; that the defendant at the time did not give any notice to the occupants of the car, and that it had never given any notice, of the proximity of the pole to the car, and that it appeared to have been the only pole in that vicinity that was dangerous to a man standing on the running board of an ordinary car; that, while the plaintiff had general knowledge that there was a line of poles along the east side of the track, he had no specific knowledge of the proximity of the particular pole by which he was injured.

It also appeared that upon the back of each seat, in legible letters plainly to be seen, were the words: "Avoid accidents. Wait until the car stops."

The defendant also put in evidence as a part of its case the charter of the railroad company and the records of the city of Bath tending to show a legal location of the railroad, and particularly the legal location of the track and poles, including the pole upon which the plaintiff was injured, on the east side of Washington street where the accident occurred. For the purposes of this case a legal location may be conceded.

Under this evidence three questions were submitted to the jury. (1) Was the defendant negligent? (2) Was the plaintiff's intestate guilty of contributory negligence? (3) The assessment of damages. It is admitted that the amount of damages, if maintainable, is reasonable. No further allusion, therefore, will be made to the question of damages. The jury found upon the other questions that the defendant was guilty of negligence, and that the decedent was not guilty of contributory negligence, or, affirmatively stated, was in the exercise of due care.

(1) Was the defendant negligent?

The ground upon which the defendant claims exemption, as we understand it, is that it had a right to maintain a pole as near to its track or car as it pleased, provided it did not come in contact with passengers occupying seats in the car, or with those riding elsewhere, with the permission of the company. In other words, that the plaintiff had no right to move from seat to seat as he was attempting to do, and that consequently they owed no duty to him while so doing. This must necessarily be the defendant's position, as it requires no argument to demonstrate that it was not authorized to maintain a pole in such a position as to injure a passenger in any situation upon the car where he had a right to be. If the plaintiff had no right to be upon the running board, the defendant was not negligent. If he did have a right to be there, then it is a question of fact for the Jury to say whether he exercised that right in a prudent or negligent manner. As the negligence of the defendant depends upon the duty owed to the plaintiff, it is evident that these two questions must become more or less blended, even in an endeavor to discuss them separately.

We do not understand that the defendant seriously questions the propriety of the verdict if the facts conceded and inferred by the jury were sufficient to constitute the basis of a legal cause of action, but emphatically urges that the controlling fact in the case, that the decedent was voluntarily moving...