Curran v. Lewiston, A. & W. St. Ry. Co.

• Decision Date: 29 June 1914
• Citation: 90 A. 973,112 Me. 96
• Parties: CURRAN v. LEWISTON, A. & W. ST. RY. CO.
• Court: Maine Supreme Court

90 A. 973

112 Me. 96

CURRAN

v. LEWISTON, A. & W. ST. RY. CO.

Supreme Judicial Court of Maine.

June 29, 1914.

On Motion from Supreme Judicial Court, Androscoggin County, at Law.

Action by Robert P. Curran, administrator, against the Lewiston, Augusta & Waterville Street Railway Company. Verdict for plaintiff for $1,811, and defendant moves for a new trial. Motion sustained, unless plaintiff files remittitur.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHILBROOK, JJ.

R. J. Curran, of Washington, D. C, and Connellan & Connellan, of Portland, for plaintiff. Newell & Skelton, of Lewiston, for defendant.

SPEAR, J. This is a motion by the defendant for a new trial. The jury found for the plaintiff in the sum of $1,811.

The action was to recover for injuries which resulted in the immediate death of the plaintiff's intestate, eight years of age, and is brought by the plaintiff as administrator for the benefit of her surviving father and mother. The evidence shows that the decedent, who was with other children in the street, ran ahead of her companions, walked directly toward the track, crossed the outer rail, and remained standing on the track, looking toward the other children, with the car approaching from the rear. There she stood until the accident happened. From the undisputed evidence the jury were warranted in finding that the motorman could, if observing, have seen the little girl standing on the track at any point within a distance of 400 feet from her. But it seems quite conclusive that his attention must have been called to the presence of this girl upon the track when he was at least 200 or more feet away, as that of several other people was, who repeatedly shouted to her, while the car was approaching with the gong sounding. After he saw her, had he been in the exercise of due care, it seems evident that he might have stopped his car before reaching her. The evidence further warranted the jury in finding that the car was running through this thickly settled community at a speed of 20 to 25 miles an hour, which, in the minds of the jury, may have been regarded as a negligent rate of speed, in view of the fact that it was the duty of the motorman to anticipate the dangers that were liable to happen and provide against them. If they so regarded the speed, they might have properly concluded that, had he been running with due care, the motorman could have stopped his ear after he had become convinced that the little girl did not hear the warnings, and showed no indications of stepping from her dangerous situation. Upon all the evidence, it is the opinion of the court that the jury did not go astray in finding the defendant negligent.

In case of immediate death, under the original statute giving a right of action, it was not only incumbent upon the plaintiff to prove the negligence of the defendant, but also that the decedent at the time of the accident was in the exercise of due care; but under the act of 1913 the burden of proof upon the question of due care was shifted, and the rule of pleading contributory negligence changed. Before the latter statute the general issue was sufficient. But chapter 27, Public Laws 1913, expressly provides:

"In actions to recover damages for negligently causing the death of a person, or for injury to a person who is deceased at the time of trial of such action, the person for whose death or injury the action is brought shall be presumed to have been in the exercise of due...