Copp v. Maine Cent. R. Co.

• Decision Date: 19 December 1905
• Citation: 62 A. 735,100 Me. 568
• Parties: COPP v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

62 A. 735

100 Me. 568

COPP

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Dec. 19, 1905.

Report from Supreme Judicial Court, Somerset County.

Action on the case by Lillian G. Copp against the Maine Central Railroad Company to recover damages for personal injuries sustained by the plaintiff, and caused by the alleged negligence of the defendant by one of its servants, a locomotive engineer. Tried at the March term, 1905, of the Supreme Judicial Court, Somerset county. Plea, the general issue. At the conclusion of the evidence the case was reported to the law court for decision upon so much of the evidence as was competent and legally admissible. Judgment for defendant.

Argued before EMERY, STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

S. W. Gould and Fred F. Lawrence, for plaintiff. Nathan & Henry B. Cleaves, Stephen C. Perry, White & Carter, and Walton & Walton, for defendant.

EMERY, J. While the plaintiff, a woman 28 years old, was walking along on the defendant company's railroad track on her way to visit a friend, she was overtaken and injured by a locomotive operated by the defendant in the regular course of its business at that place. She did not look behind her, nor take any other measures to become apprised of the approach of trains or locomotives, though she was aware that the track where she was walking was used, not only for the passage of regular trains, but also for shifting cars, making up trains, etc.

To extricate herself from the position of a trespasser upon the track, she showed that other persons frequently, and even habitually, walked upon the track at that place without being forbidden by the defendant company. This however did not give her any right to walk on the track. Not only was the railroad company entitled to the exclusive use of its track between crossings and stations, as this place was, but she was forbidden by statute to walk upon it. Rev. St. c. 52, § 77. That the defendant company did not prosecute violators of this statute did not legalize her act, nor protect her from its consequences.

To relieve herself from the inference of gross carelessness on her part, she says she was walking on the outside of the left-hand rail, and thought she was walking far enough from it to be out of danger. Her opinion that she was in no danger does not alter the patent fact that she had voluntarily placed herself, and was voluntarily remaining, in a position conspicuously fraught with imminent danger. She says she was hard of hearing but that very fact made it all the more reckless for her to walk on the track.

Finally she claims that, however great her own negligence, it was past and over before the locomotive struck her, and hence was no part of the proximate cause of the collision and her injury; that the engineer was negligent in not stopping the locomotive, as he might have done after he saw her and before he reached her; that her negligence was anterior to his, and hence his was the sole proximate cause of the injury.

Of course, even if she were a trespasser, the defendant company's servants...