Allen v. Maine Cent. R. Co.

• Decision Date: 14 October 1889
• Parties: ALLEN v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

19 A. 105

82 Me. 111

ALLEN

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Oct. 14, 1889.

(Official.)

Motion to set aside verdict in supreme Judicial court, Sagadahoc county.

Action by Dwinal P. Allen against the Maine Central Railroad Company for injuries received while driving over a crossing of defendant's road. The jury rendered a verdict for plaintiff for $7,500, which defendant moves to set aside as excessive, and against the law and evidence.

W. Gilbert and W. E. Hogan, for plaintiff. Baker, Baker & Cornish, for defendant.

HASKELL, J. Defendant's railroad crosses Pearl street, in Bath, at the foot of a sharp pitch in that street, at the top of which, and 134 feet distant from the railroad, stands the shop of Mr. Ward.

The plaintiff's own account of the circumstances attending his injury is, in substance, that, for several months before the accident, he had been in the employ of Ward, driving a "meat team," and was familiar with the street, the railroad crossing, and the running of the railroad trains; that, on the morning of the accident, knowing that the morning train from Bath had not passed, he listened for it, did not hear it, mounted a meat wagon covered with canvas, sat at the front, inside the covering, and started for the crossing at a trot; that, as he approached the crossing, he leaned forward, and looked up the track from Bath, then down the track towards Bath, and saw the train close upon him; that when he looked towards Bath, his horse's fore feet were between the rails; that he heard the train strike, felt a jar, and became unconscious.

The plaintiff listened before he started for the crossing. That was an act of care. He had a right to rely upon the train's approach at a rate of speed not exceeding that allowed by law, six miles an hour; and if the train had been coming within that rate of speed, observing the usual signals, he may well have presumed, from not hearing it, that it was so far distant as to give him ample time to cross the track in safety; so he appears guilty of no act of carelessness until he reached a point in the street where an approaching train might be seen, if looked for.

The evidence shows that, at 25 or 30 feet distant from the crossing, the approaching train from Bath might have been seen by the plaintiff several hundred feet distant from the crossing. The plaintiff did not look in that direction until his horse's fore feet were between the rails. Was the neglect on his part to look in...