Butler v. Rockland, T. & C. St. Ry.

• Decision Date: 26 July 1904
• Citation: 58 A. 775,99 Me. 149
• Parties: BUTLER v. ROCKLAND, T. & C. ST. RY.
• Court: Maine Supreme Court

58 A. 775

99 Me. 149

BUTLER

v. ROCKLAND, T. & C. ST. RY.

Supreme Judicial Court of Maine.

July 26, 1904.

(Official.)

On motion from Supreme Judicial Court, Knox County.

Action by Herbert C. Butler against the Rockland, Thomaston & Camden Street Railway to recover damages for personal injuries sustained by plaintiff in a collision between defendant's car and the team in which plaintiff was riding. Plea of the general issue. Verdict for plaintiff for $8,157.50. Motion for new trial by defendant sustained.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

J. E. Moore and D. N. Mortland, for plaintiff.

Arthur S. Littlefield and Orville D. Baker, for defendant.

SAVAGE. J. Case for damages for personal injuries sustained in a collision between defendant's cars, and the team in which the plaintiff was riding. The plaintiff obtained a verdict, which the defendant, on motion, seeks to have set aside.

It appears that the line of the defendant's railway in Rockport, at the point where the collision occurred, lies on the easterly side of the highway, and the outer rail, towards the sidewalk, is 19 feet from the southwesterly corner of a house known in the case as the "Shepard House." By the driveway leading easterly from the street by the southerly side of the Shepard house to the yard the distance from the rail to a point opposite the corner of the house is 20 feet. Standing at the corner of the Shepard house, and looking northerly towards Camden, the first object or obstruction to vision is a trolley pole about 84 feet from the center of the driveway, and the ordinary distance easterly from the rail. One hundred and thirty-one feet further on in the same direction is another trolley pole, and on each side of the pole a tree a foot and a half in diameter. The trees were each about 10 feet from the pole, were in line with it, and trees and pole were about parallel with the railway track. These trees and pole partly obscure a view of the track. One hundred feet further on, or 315 feet from the center of the driveway, is a third trolley pole. Between the second and third poles, but easterly, and upon the easterly side of the road, is a house called the "Burgess House." There are three slight curves in the railway track, and beyond the Burgess house, near the third pole spoken of, the house obstructs the view, and the track passes from the sight of an observer who may be at the corner of the Shepard house. So much for the physical situation, about which there seems to be no controversy.

On October 2, 1902, the plaintiff, who was a clerk in a grocery store, was driving a covered delivery wagon. The cover extended so far forward as the front edge of the seat, and rose perpendicularly, and so over to the other side. The effect was that the plaintiff, if sitting on the seat, could not look out at a right angle without leaning forward. He started from Rockport village, which is southerly from the Shepard house, and drove to that house, where he called. He testified that on his way he met one of the defendant's passenger cars proceeding from Camden towards Rockport. These cars run half-hourly. He drove into the yard on the southerly side of the Shepard house, made a delivery of goods, returned to the wagon, took his seat, turned, and drove out westerly towards the street. The plaintiff testified that as he came out of the yard he looked southerly in the direction of Rockport, having in mind the car which naturally would cross the one he had met at Eell's crossing, further to the south, and would be coming towards the Shepard house; also that when he reached the corner of the Shepard house he pulled up the reins a little, and leaned forward a little, and looked northerly on the track towards Camden; that he did not see any cars, nor hear any, nor hear any bell or gong; that he then settled back upon the seat, and drove onto the track, and that his horse was walking all the time. Meanwhile a train of the defendant's cars loaded with lime rock was being propelled southerly from a quarry past the Burgess house and the trees which have been spoken of, towards the driveway at the Shepard house, on its way to the lime kilns in Rockport. The train consisted of three rock cars pushed by a motor car in the rear. Each rock car was 13 1/2 feet in length and the motor car was 19 feet. The length of the train was in all 59 2/2 feet. The weight of the train was approximately 32 1/2 tons. Just as the plaintiff's wagon was over the rails at the driveway, it was struck by the forward rock car, and the plaintiff was thrown out and seriously injured. The wagon was thrown forward to the left hand, but the horse on the right apparently was not touched. The car itself was derailed. The train pushed it along about 25 feet before it stopped.

The plaintiff claims that the train was traveling at the rate of at least 16 miles an hour, while he himself was going at the rate of not more than 2 or 2 1/2 miles an hour. The defendant claims that the train was moving only from 6 to 8 miles an hour, and that the plaintiff drove his horse down the driveway at a quick trot, say 6 miles an hour, slowing somewhat as he approached the track.

Beyond an estimate of the speed at which the train was moving several hundred feet before the driveway was reached, the plaintiff introduced no direct testimony respecting the movements of the train. But the defendant's witnesses the trainmen testified, in effect, that the train had reached a point 50 or 60 feet from the driveway, when the plaintiff's horse appeared from behind the Shepard house, going towards the track at a trot; that the brakeman on the front end of the front car instantly shouted, and signaled to the motorman to stop; and that the motorman at once reversed the action of the motor, the effect of which was to reduce the speed of the train so suddenly that the front brakeman was thrown from the car, and this, he says, was almost at the same instant that the car struck the wagon. He also testified that the collision occurred before he had time to set his brake, the chain of which was slack at the time. The witness also testified that the gong on the motor car was ringing, and had been ringing for several hundred feet back. They estimated the speed of the train at from six to eight miles an hour, and testified that by reversing the motor—the most efficient process known— the train could be stopped in from 75 to 100 feet.

The burden was upon the plaintiff to show that his injuries were caused by the negligence of the defendant or its servants, and that no want of due care on his part contributed to the injury, or, if he himself was guilty of contributory negligence, that some distinct and later negligence of the defendant was the proximate cause of the injury. Atwood v. Railway, 91 Me. 399, 40 Atl. 67. The defendant contends that it is so clearly manifest that the plaintiff has not proved any one of these essential propositions that the court is required to set the verdict aside to prevent a miscarriage of justice.

1. Was the defendant or its servants guilty of negligence? Or, to state the question more accurately, were the jury justified in finding them guilty? In finding them so, is their conclusion unmistakably wrong? The court is not required, or even permitted, to set aside a verdict merely because the jury came to a conclusion different from that to which the court would have come. The jury have the right for themselves to determine the credibility of witnesses, to determine how far their stories are true, and from the truth of the statement thus ascertained to make all legitimate inferences; and, unless their conclusions are palpably wrong, their verdict cannot be disturbed.

This defendant had a lawful right to operate its railway in the location where it was placed, and to run its cars singly or in trains, upon its track; but it was its duty to do so having due regard to the safety not only of travelers upon the street, but of those who might have occasion to cross the track in driving out from the yards of houses situated along its railway. The speed at which a car or train may properly be run, the kind of control over it, and the degree of watchfulness which is imposed upon those in charge must depend to some extent upon the surrounding conditions, such as the nearness of the track to the side of the street and to the houses, the likelihood of persons driving out from the yards, and whether the driveways are so situated that persons driving out over them can see or learn of the approach of cars in season, with due care, to avoid collision. The defendant and its servants had a right to assume that all such persons would themselves be in the exercise of ordinary care. While, as was said in Fleweiling v. Railway, 89 Me. 593, 36 Atl. 1057, "electric street cars have, in a qualified way, at least, the right of way as against persons on foot or traveling with carriages and teams, in the same manner as ordinary steam railroads have," yet we think it is only "in a qualified way." The movements of their cars and trains are more easily and quickly controlled than are those of steam railroads. The speed at which they may properly travel along the highways is much less than the ordinary speed of steam railroads. Instead of a right of way exclusive except at crossings, they exercise their right of way in a public thoroughfare, to which many people must have access from their houses. And this access to the highway must in many cases, as in this, be had across the railway tracks. "Travelers with teams and proprietors of street cars still have concurrent rights and mutual obligations." Atwood v. Railway, supra.

In fine, it was the duty of the defendant to this plaintiff at the time in question to use due care, in view of apparent dangers, and those which might reasonably be expected, so to regulate the speed of its cars, so to have them under control, and so to be on...