Day v. Boston & M. R.

• Decision Date: 11 June 1903
• Citation: 97 Me. 528,55 A. 420
• Parties: DAY v. BOSTON & M. R.
• Court: Maine Supreme Court

55 A. 420

97 Me. 528

DAY

v. BOSTON & M. R.

Supreme Judicial Court of Maine.

June 11, 1903.

(Official.)

Exceptions from Supreme Judicial Court, York County.

Action by Lottie I. Day, administratrix, against the Boston & Maine Railroad. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Upon a second trial of this case granted by the court, as reported in 96 Me. 207, 52 Atl. 771, 90 Am. St. Rep. 335, the presiding justice ordered a verdict for the defendant.

The parties agreed that, if a verdict in favor of the plaintiff would have been authorized by the evidence, judgment should be rendered for the plaintiff for such sum as the law court believe the plaintiff was entitled to.

The case is stated in the opinion. Argued before EMERY, WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

E. P. Spinney, for plaintiff.

G. C. Yeaton, for defendant.

WHITEHOUSE, J. This action is founded on the statute of 1891 giving a right of action for injuries causing death, and is brought against the defendant company to recover damages for negligently causing the death of the plaintiff's intestate, Edwin Day, at the Junkins railroad crossing, in North Berwick, on the 21st day of July, 1899. The former trial of the action at the September term of court, 1900, resulted in a verdict of $4,000 in favor of the plaintiff. This verdict was set aside by the law court, for reasons clearly and sufficiently stated in the opinion of the' court. 96 Me. 207, 52 Atl. 771, 90 Am. St. Rep. 335. The cause came on for trial a second time at the September term of court, 1902, and, after the evidence had been introduced for both the plaintiff and the defendant, the presiding judge directed the jury to return a verdict for the defendant. The case comes to this court a second time on the plaintiff's exceptions to this ruling, with a stipulation that, "if a verdict in favor of the plaintiff would have been authorized by the evidence, judgment shall be rendered for the plaintiff for such sum as the law court believes the plaintiff is entitled to."

After a careful examination of the evidence disclosed by the record now presented, it is the opinion of the court that the conclusion announced in the former opinion was justified and required by the established principles of law applied to the facts there stated, and that the evidence, with additional testimony now before the court, will not warrant a different result.

The leading and most essential facts involved in the decision of the vital issue in the case do not appear to be in controversy. In the forenoon of July 21, 1899, a "bright and clear day," the plaintiff's intestate, Edwin Day, a man 35 years of age, with faculties and senses unimpaired, was driving a single horse attached to an unloaded hay cart along Wells street from North Berwick towards the grade crossing above named, which intersects the Eastern Division of the defendant's railway at an angle of 43 1/2 degrees. He was leaning against the front rail of the hayrack, one rein in each hand, and driving at the moderate pace of about five miles an hour. When within about "thirty or forty" feet of the crossing he stopped his team for "two or three seconds," and then, urging his horse into a trot, attempted to drive over the defendant's railroad crossing, but was struck and immediately killed by a special train from Boston to Portland, approaching from a direction thus partially in his rear.

The railroad crossing in question was 1,832 feet from North Berwick railroad station, and the track of the Eastern Division is on a descending grade, and nearly straight, for a distance of about six miles towards Kennebunk. It was admitted that this crossing was not provided with gates, flagman, or automatic signals, and it may be assumed, though it was not conceded by the defendant, that it was "near the compact part of the town." It was not in controversy that at the time of the accident the special train was running "at a greater speed than six miles an hour," the plaintiff contending that it was from 50 to 60 miles an hour, and the defendant conceding that it was from 20 to 25 miles an hour. Whether or not the bell was rung and the whistle blown on this train, as required by law, was one of the controverted questions in the case. The plaintiff's evidence, which was necessarily to a great extent of a negative character, tended to show that these statutory signals of the approach of the train were not given, while the defendant's evidence and the weight of all the positive testimony in the case showed that these customary warnings were duly sounded. But assuming that there was sufficient evidence to support a finding of the jury in favor of the plaintiff's contention respecting the speed of the train and the signals of approach, the defendant invokes the settled rule of law that no such omission of duty or violation of statute on the part of the defendant would relieve the traveler from the obligation to use his own senses of sight and hearing to inform himself of an approaching train, and confidently insists that the plaintiff's intestate either failed to exercise the requisite degree of care and vigilance to discover the train at the time in question, or, discovering it, rashly attempted to cross in front of it.

The distance on Wells street from its junction with Portland street to the crossing is 471 feet, and the defendant contended, and introduced photographs, with other evidence, to show, that at every point in this distance of 471 feet on Wells street some portion of the train or smokestack, or the smoke and steam rising from it, must have been plainly visible to the traveler throughout the entire distance of 911 feet on the railroad as the train approached from Drew's overhead bridge to the crossing. The plaintiff contends, however, that through a large portion of this distance the traveler's view of the train was obstructed by a high embankment on the northerly side of the railroad, and also by a tight board snow fence 27 feet from the center of the track, and that it was impossible for Mr. Day, standing on his hayrack at any point on Wells street between the crossing and a point 75 feet distant therefrom, to see the approaching train until it came within 253 feet of the crossing. But it could not reasonably be contended that no possible means were available to the traveler for the discovery of an approaching train in season to avoid a collision, and the existence of extraordinary difficulties in discovering it by sight should have suggested to a person of ordinary care and prudence the necessity of exercising greater precaution, and making stronger efforts to ascertain the facts in some other way. It is common knowledge that a vast increase in the speed of railroad trains has been required in recent years in order to meet a constant demand for the most rapid transit consistent with the safety of public travel, and ordinary care and prudence accordingly demand of the traveler upon our highways greater vigilance and more thoughtful attention in order to discover the approach of railroad trains and avoid collisions on the crossings at grade.

In the case at bar it has been seen that Mr. Day was driving on Wells...