Blumenthal v. Boston & M. R. R.

Citation97 Me. 255,54 A. 747
PartiesBLUMENTHAL v. BOSTON & M. R. R.
Decision Date01 January 1903
CourtSupreme Judicial Court of Maine (US)

(Official.)

Exceptions from Superior Court, Cumberland county.

Action by Hyihan Blumenthal against the Boston & Maine Railroad. Judgment of nonsuit, and plaintiff excepts. Overruled.

Case to recover damages sustained by the plaintiff when driving over the defendant's railroad at a highway grade crossing at Central street in Westbrook. The plaintiff claimed that the collision was caused by the negligence of the defendant's employés in the management of its train.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Wm. Lyons, E. Poster, and O. H. Hersey, for plaintiff.

J. W. Symonds, D. W. Snow, C. S. Cook, and C. L. Hutchinson, for defendant.

WISWELL, C. J. While the plaintiff was attempting to drive over the defendant's railroad at a highway grade crossing, he was struck by a freight train of the defendant and sustained serious bodily injury. Claiming that this collision was caused by the negligence of the defendant's employés in the management of the train, he brought this action to recover damages for the injuries sustained by him. At the trial, upon the conclusion of the plaintiff's testimony, the court ruled that a prima facie case had not been made out, and ordered a nonsuit. The case comes to the law court upon the plaintiff's exception to this ruling.

In accordance with familiar principles, which have been so frequently laid down by this court that reference to the authorities is unnecessary, it was incumbent upon the plaintiff, in order to entitle him to have the case submitted to the jury, to introduce testimony tending to affirmatively prove two propositions—the negligence of the defendant in some of the respects complained of, and that no failure upon his part to exercise due care contributed to the accident; and it was as essential for him to affirmatively prove the exercise of due care upon his part as to show negligence upon the part of the defendant.

So far as the first proposition is concerned, it is sufficient to say that we think that the evidence introduced by the plaintiff, uncontradicted, was sufficient to justify a jury in finding that there was negligence upon the part of the defendant's employés. It therefore becomes necessary to consider whether, in accordance with the well-established rules as to when the question of negligence is one of fact for the jury and when one of law for the court, the uncontradicted evidence in behalf of the plaintiff in support of his second proposition, that no want of due care upon his part contributed to the accident, was sufficient to entitle him to have this question submitted to a jury.

The plaintiff was a dealer in Junk. Upon the morning of the day of the accident, April 30, 1900, he had driven with his own horse and express wagon from Portland to Westbrook. During the greater part of the forenoon he had gone about from house to house in the latter city, plying his trade. Shortly before noon he turned into Central street and drove northerly along that street towards the grade crossing of the defendant's railroad, his destination being a grain store beyond the railroad crossing, where he intended to buy grain for his horse.

At this highway crossing there were three tracks of the defendant's railroad. A board fence extended along the southerly side of the railroad from Brackett street to the easterly line of Central street, a distance of about 390 feet. The end of this fence at the Central street line was 30 feet southerly from the southerly rail of the third or last track at the crossing, and the northerly rail of the first track, in the middle of the street was about 25 feet southerly of the southerly rail of the third track. The plaintiff crossed the first two tracks safely, and was struck while attempting to cross the third and last track.

As the plaintiff, drove northerly along Central street, from the point where he entered that street until nearly to the first track, his view of the railroad on the easterly side of the street—the direction from which the train was coming—was more or less obstructed by buildings, and some of the witnesses think that it might also have been obstructed by the board fence above referred to. Giving the plaintiff the benefit of the most favorable construction possible to the evidence in regard to these obstructions to ins vision, it may be assumed that the plaintiff's view of the track in this direction was entirely obstructed until he reached a point inside of this board fence.

But it is made absolutely certain by the plan which was furnished by the defendant, but which was used by the plaintiff and brought to the law court as a part of the case, and as to the accuracy of which no question is raised, that, after the plaintiff reached a point inside of this fence, he had an...

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38 cases
  • Arnstein v. Porter
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 11, 1946
    ...v. Syracuse Rapid Transit R. Co., 178 N.Y. 50, 52, 70 N.E. 98; Heist v. Blaisdell, 198 Pa. 377, 48 A. 259, 262; Blumenthal v. Boston, etc., R. Co., 97 Me. 255, 260. 54 A. 747; Moore, Facts (1898) §§ 146, 147, 152, 170, 171, 173, 6 Marston v. Dresen, 85 Wis. 530, 535, 55 N.W. 896, 899. 6a Ev......
  • Haugo v. Great Northern Railway Co.
    • United States
    • United States State Supreme Court of North Dakota
    • March 6, 1914
    ......Green Bay & W. R. Co. 125 Wis. 96, 103 N.W. 249; Pittsburg, C. C. & St. L. R. Co. v. West, 34 Ind.App. 95, 69 N.E. 1017;. Blumenthal v. Boston & M. R. Co. 97 Me. 255, 54 A. 747; Peters v. Southern R. Co. 135 Ala. 533, 33 So. 332; Carlson v. Chicago & N.W. R. Co. 96 Minn. 504,. 4 ......
  • Mississippi Cent. R. Co. v. Smith
    • United States
    • United States State Supreme Court of Mississippi
    • June 8, 1936
    ......Ry. Co., 74. Iowa 607, 38 N.W. 431; Young v. Ry. Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339,. 32 A. 976; Blumenthal v. Railroad Co., 97 Me. 244,. 54 A. 747; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Day v. B. & M. R. R., 97 Me. 528, 55 A. 520;. ... . . Shea v. Retie and Murphy v. Rettie, 192 N.E. 44; Elmer. v. Fessenden, 152 Mass. 427, 28 N.E. 299; Gray v. Boston Elevated Ry. Co., 215 Mass. 143, 102 N.E. 71;. Geraty v. Kaufman. 115 Conn. 563, 162 A. 33; I. C. R. R. Co. v. Porter, 117 Tenn. 13, 94 S.W. ......
  • Thompson v. Mississippi Cent. R. Co
    • United States
    • United States State Supreme Court of Mississippi
    • March 9, 1936
    ......687; Railroad Co. v. Kirby, 86 Ill.App. 57; Railway Co., v. DeFrietas, 109 Ill.App. 104; Payne v. Railroad. Co., 39 Iowa 523; Blumenthal v. Railroad Co., . 97 Me. 255, 54 Ail. 747; McCarthy v. Railroad Co., . 90 A. 490, 54 L. R. A. (N. S.) 140; State v. Dettner, 27 S.W. 1117; ......
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