Atwood v. Bangor, O. & O. T. Ry. Co.

• Decision Date: 01 March 1898
• Citation: 40 A. 67,91 Me. 399
• Parties: ATWOOD v. BANGOR, O. & O. T. RY. CO.
• Court: Maine Supreme Court

40 A. 67

91 Me. 399

ATWOOD

v. BANGOR, O. & O. T. RY. CO.

Supreme Judicial Court of Maine.

March 1, 1898.

(Official.)

Action by Fred Atwood against the Bangor, Orono & Old Town Railway Company. Verdict for plaintiff. On motion to set aside the verdict. Overruled.

P. H. Gillin and C. J. Hutchings, for plaintiff.

F. H. Appleton and H. R. Chaplin, for defendant.

WHITEHOUSE, J. The plaintiff recovered a verdict of $140.63 for the loss of a horse and injuries to a wagon and harness resulting from a collision with one of the defendant's cars, and the case comes to the law court on the defendant's motion to have the verdict set aside as against the evidence.

The accident occurred on the afternoon of August 3, 1896, on Gilman Hill, in Orono, at a point about 30 rods distant from the brow of the hill. The plaintiff was on his way to Orono, with a dump cart drawn by two horses, and, at the point above named, met an acquaintance by the name of Palmer, with a hayrack drawn by two horses, on the way to Bangor. The plaintiff and Palmer stopped their teams to talk for a few minutes, and while standing there, according to the plaintiff's testimony, the two teams were nearly opposite each other, Palmer's off wheel being in the ditch, and the plaintiff's team between Palmer's and the railroad, about six inches from the track. While the plaintiff was thus engaged in conversation with Palmer, neither giving attention to his team, nor exercising vigilance respecting the approach of the defendant's cars, one of the electric cars appeared on the brow of the hill, on schedule time. The plaintiff testifies that although he had an unobstructed view, and could have seen the car 25 or 30 rods away, he was not in fact aware of its approach until it was within 10 rods of his team; that his horses then began to "prance round," and to back; that the sounding of the gong by the motorman only "made it worse"; that the car was coming down the hill "four times as fast as he ever saw cars running in Brewer"; and that, before he had time to move his team, the car was upon him, the collision occurred, and the damage was done. The plaintiff accordingly contends that the defendant company should be held responsible for the injury, because the car was running at an unusual and dangerous rate of speed, and by reason of the failure of the motorman to use proper diligence to stop the car after it was apparent that a collision was inevitable.

On the other hand, the defendant insists that the car was running on regular time. And at the usual rate of speed; that the motorman commenced ringing his gong as soon as he saw the team, from the brow of the hill; that the horses at first exhibited no signs of being frightened, and that he had a right to assume from the attitude and conduct of the plaintiff that there was no danger in proceeding in the ordinary manner; that, as soon as he had reasonable ground to apprehend that the team would be an obstruction on the track, he reversed the power, and promptly used all the means at his command to stop the car and prevent a collision. The defendant accordingly contends that there is no just ground of liability on the part of the defendant company, and that the injury resulted from the plaintiff's own negligence in using the highway under such circumstances for the purpose of having a social interview with another traveler, and from his gross inattention and apparent indifference to the movements of the defendant's cars.

It is impossible to resist the conclusion that the plaintiff himself, immediately before the collision, was not in the exercise of reasonable and ordinary care and caution, under the circumstances disclosed by the testimony. Highways are constructed and maintained for the accommodation of travelers, and not as places of resort for business negotiations or social converse. All travelers with terms have equal rights on the highway, but each must exercise his right in a reasonable manner, and use the way with due regard to the rights of others. And, since highways have been subjected to a new mode of use by the Introduction of street railways, a still higher degree of attention, vigilance, and prudence is requisite to fill the measure of ordinary care demanded of the traveler. Travelers with teams and proprietors of street cars still have concurrent rights and mutual obligations; but as the cars must run on a fixed track, and rapidly acquire a greater momentum, they must to a reasonable extent be allowed the right of way. As stated by the court in Flewelling v. Railroad Co., 89 Me. 593, 36 Atl. 1057: "Electric street cars have, in a...