Conway v. Lewiston & A. Horse R. Co.

• Decision Date: 15 April 1897
• Citation: 38 A. 110,90 Me. 199
• Parties: CONWAY v. LEWISTON & A. HORSE R. CO.
• Court: Maine Supreme Court

38 A. 110

90 Me. 199

CONWAY

v. LEWISTON & A. HORSE R. CO.

Supreme Judicial Court of Maine.

April 15, 1897.

(Official.)

Action by Lottie Conway against the Lewiston & Auburn Horse-Railroad Company. There was a verdict for plaintiff, and defendant moves for a new trial. Sustained.

A. R. Savage and H. W. Oakes, for plaintiff.

Wallace H. White, Seth M. Carter, and W. F. Estey, for defendant.

WHITEHOUSE, J. On the evening of August 21, 1892, the plaintiff was a passenger on one of the defendant's open cars, going up College street, in Lewiston; and, in alighting from the car near the corner of College and Skinner streets, she accidentally stepped on a rolling stone lying in the street between the car and the sidewalk, and received a sprain or fracture of the ankle.

At the former trial of this case the jury returned a verdict for the plaintiff for $317.17. At that time the precise nature and extent of the injury, or the question of complete and permanent recovery, had not been determined. But at the second trial Dr. Garcelon, one of the attending surgeons, testified as follows in relation to the recovery: "I think it is as perfect as anything could possibly be. The limb speaks for itself. The appearance of the limb is very normal. There is no deformity." Yet the jury at this trial rendered a verdict for $1, 183.33; and, in presenting the motion for a new trial, the counsel for the defendant calls attention to this fact as an indication of the probable influence of sympathy, or of bias and prejudice, in the deliberations of the jury respecting the question of liability, as well as the amount of damages.

The plaintiff claims that when the car reached the corner of Vale street, a point quite distant from Skinner street, she asked the conductor to stop for her to get off at the corner of College and Skinner streets; that she made no further request, and gave no signal to the conductor as the car approached her destination; that the conductor did not heed her request to stop the car at the corner, but went beyond the crossing; and that she was aware of the fact that the car was "round the corner," or "beyond the crossing," before it stopped. Her manner of alighting is thus described in her testimony: "When the car stopped, the conductor stood by the side of the seat where I was sitting, and I got up to get out of the car, and he took hold of my hand to help me; and, as I got out, I stepped on a rock, on which I suppose my ankle turned and broke."

It is charged in the plaintiff's writ that the failure of the conductor to stop the car for the plaintiff to get off at the crossing, and his invitation and proffered assistance for her to alight a short distance therefrom, at a point on Skinner street, described as a ditch and a dangerous and unsuitable place, constituted actionable negligence on the part of the defendant company.

It will be observed, however, that, in her account of the accident above quoted, the plaintiff makes no reference to the existence of a ditch at the point where she stepped from the car, and no complaint of an unexpectedly long or difficult step from the car to the ground; but, in another part of her testimony, she compared it in length to the step from the floor of the court room to the platform on which she stood when testifying. It appears, also, that, in describing the accident to the surgeon, she stated, in substance, that in going from the car to the sidewalk, after she alighted, she stepped on a stone, and turned her ankle; and, again, that she "got out from the car, and stepped on a rock, and turned her ankle." It is true that, in answer to further and specific inquiries, she testifies that she stepped into the ditch, but there is no claim or suggestion in her testimony that the length of the step from the car to the ground was the cause of the accident.

It also appears from her testimony that the car had only passed beyond the crossing or "over the corner" about the "length of the judge's desk," before it stopped.

It is provided by the city ordinance in force at that time that, when a car is required to be stopped at the intersection of two streets, it shall be "stopped so...