Robbins v. Lewiston, A. & W. St. Ry.

• Decision Date: 15 August 1910
• Citation: 77 A. 537,107 Me. 42
• Parties: ROBBINS v. LEWISTON, A. & W. ST. RY.
• Court: Maine Supreme Court

77 A. 537

107 Me. 42

ROBBINS

v. LEWISTON, A. & W. ST. RY.

Supreme Judicial Court of Maine.

Aug. 15, 1910.

Exceptions from Supreme Judicial Court, Kennebec County.

Action by Oceolar Robbins against the Lewiston, Augusta & Waterville Street Railway. Verdict for plaintiff, and defendant brings exceptions, and moves for a new trial. Motion and exceptions overruled.

Action on the case for personal injuries received by the plaintiff while in the performance of his duties as a servant of the defendant, claimed to have been caused by the negligence of the defendant in the choice and retention of one Merton L. Taylor and one Dana P. Sanborn, fellow servants of the plaintiff, or one of them. Plea, the general issue. Verdict for plaintiff for $7,500. The defendant excepted to certain rulings and also filed a general motion for a new trial.

The case is stated in the opinion.

The plaintiff's writ contains three counts. The first count, setting out the cause of action generally, is as follows:

"In a plea of the case for that on the 20th day of July, A. D. 1907, the defendant company, to wit, the Lewiston, Augusta & Waterville Street Railway, was a corporation duly organized by law, and, as such, owned and operated a certain street railway or electric railway between the town of Winthrop and the city of Augusta as a common carrier of passengers for hire, and as part of its business and in the usual course thereof owned and operated through its servants and agents certain electric cars, so called, or cars the motive power of which was electricity. And the plaintiff was then and there an agent or servant of said defendant company. And on the day aforesaid, to wit, the 20th day of July, A. D. 1907, was duly and regularly employed as motorman aforesaid, and in the regular course of his employment was driving a certain car belonging to said company from Winthrop aforesaid to Augusta, aforesaid. And the plaintiff says that the defendant company then and there owed him the duty of providing a reasonably safe and suitable place in which, and reasonably safe and suitable appliances with which, to perform his labor, as aforesaid, and the plaintiff says the defendant company then and there owed him the duty of using reasonable care and diligence in the engaging, hiring, or employing of reasonably careful and prudent servants or agents, having a view to the nature of the work to be performed, so that he would not in the ordinary and regular course of his employment be exposed to undue and unnecessary risk from the negligence or carelessness of negligent and careless fellow servants. But the plaintiff says the said defendant company wholly unmindful of its duty in this regard, and totally disregarding same, carelessly and negligently engaged or employed certain servants or agents, to wit, Merton L. Taylor and Dana Sanborn, as motorman and conductor, respectively, on one of the defendant company's cars, and the plaintiff says these men were totally and absolutely unfit for the work to which they were assigned because of immaturity of age, want of experience, and a careless, negligent, and willful tendency to disregard the rules of the defendant company and the orders of their superiors in authority, all of which the defendant company then and there well knew, or in exercise of ordinary and reasonable care and diligence might have known, and all of which the plaintiff was ignorant of, and not at all informed of. And the plaintiff says that while in the due discharge of his duty and in the exercise of due care and in no way due to his fault, but entirely and solely due to the reckless, careless, willful, and wanton negligence of Merton L. Taylor and Dana Sanborn, aforesaid, the car in and upon which the plaintiff was at work as motorman, aforesaid, while coming toward Augusta, and while in the town of Winthrop, was suddenly crashed into by a car driven by said Merton L. Taylor, and on which said Dana Sanborn was conductor, and the plaintiff was then and there crushed, maimed, and greatly injured about bis head and chest, his spine and spinal cord and the structures thereto attendant, his stomach and bowels, his arms and legs, receiving a great shock to his nervous system, injuring his brain, rendering him unconscious and otherwise greatly injuring him in mind and body, and as a result the plaintiff has suffered great pain and anguish both of mind and body, has been put to great expense for medical treatment, medicine, and nursing, has been wholly unable to work or labor from the day of the accident to the date of this writ, and is permanently injured, and will be unable ever again to do work or labor."

Argued before EMERY, C. J., and PEABODY, SPEAR, KING, and BIRD, JJ.

Benedict F. Maher, for plaintiff.

Heath & Andrews, for defendant.

SPEAR, J. This case comes up on motion and exceptions. The case is stated in the defendant's brief as follows:

On July 20, 1907, the plaintiff was a motorman on defendant's trolley car, then running from Winthrop to Augusta, on a road which is operated by the block signal system. The track between the substation at East Winthrop and Island Park is governed by a block with lights at each end. Plaintiff, when about to leave the substation, found a white light in front of him, indicating, according to the system, that there was no car in the block coming toward him from Island Park. He was justified in going ahead into the block as he did. The due care of the plaintiff throughout is admitted.

Two cars had left Augusta running opposite to plaintiff, one the regular car bound for Winthrop, the other a special car with orders to run only to Island Park, and to there cross plaintiff. The special had no right to go beyond Island Park. It was to follow the regular from Augusta to Island Park. The regular carried a sign "Car following" to Indicate to all crossing cars that they should wait for the special. Plaintiff's car and the regular from Augusta should have crossed at Island Park, if both had been on time. On arriving at Island Park, plaintiff's car not being there, the regular properly proceeded on towards the substation, as the light at Island Park was white, indicating that plaintiff had not arrived at the substation. When the regular so entered the block, it threw the light at the substation red, indicating to plaintiff that he must wait for the regular before entering the block. The regular on crossing plaintiff at the substation took off the sign "Oar following." as they knew the orders were for the special to remain at Island Park. When the regular passed plaintiff at the substation, he was justified in believing there was and would be no car in the block. The regular as it left the block turned the light white, a mechanical order to plaintiff to proceed to Island Park.

The special, without orders and against orders, left Island Park shortly after the regular, and, unseen by the regular, continued to follow it to the substation. This had no effect upon the substation light which could be changed from red to white only by the action of the forward car, the regular. If the following car violates orders and enters a block behind a regular, the protection of the crossing car is in the "Car following" sign.

As a result the car of plaintiff and the special collided in the block, severely injuring plaintiff. That Taylor the motorman and Sanborn the conductor in charge of the special were both guilty of negligence in so entering the block was admitted. The damages were assessed at $7,500. The defendant does not contend that the law court would be justified in finding the damages to be unreasonably excessive.

From this statement it will be seen that the plaintiff's action rests upon the claim that the defendant was negligent in the selection and retention of its servants Taylor and Sanborn, especially Taylor, the motorman, when it knew, or by the exercise of due care should have known, his incompetency. The negligent act complained of was the running into the block without orders and against orders in violation of the rule.

The fate of the motion depends upon the result of the exceptions. If the exceptions prevail, the evidence in support of the verdict disappears. If the exceptions fail, the verdict is well founded. In other words, the evidence, if admissible, amply sustains both the charge of unfitness of the servant and such notice thereof to the defendant that it knew or by due care ought to have known of his incompetency.

But it is contended that the negligent acts of the servant which by the verdict we must assume to be proven were not of such a character as to fairly warrant the conclusion of incompetency. We think differently. Time after time he ran his car, in violation of rules and orders and against the protest even of the conductor, round curves at an excessive rate of speed. So persistently and recklessly did he do this that one conductor, after repeated reports of these willful acts of misconduct to the superintendent of the defendant company, resigned his position rather than continue the hazard of further employment with this young man acting as motorman. He violated the controller handle rule, which forbids a motorman to leave the car without taking his controller handle with him. He ordered the substation to shut down the power, clearly exceeding his authority. He refused to exchange passengers as ordered, thereby disobeying the direct order of the superintendent. He refused to obey the conductor's signal bells.

These varied acts of insubordination seem to us more potent in their tendency to establish character for willful disobedience than the repetition for an equal number of times of the same act, involving the precise element of character. The conduct of this servant as manifested by these various acts fully brings him within the rule of legal incompetency. In the legal sense, incompetency or unfitness is not...