Denis v. Lewiston, B. & B. St. Ry. Co.

• Decision Date: 26 February 1908
• Citation: 104 Me. 39,70 A. 1047
• Parties: DENIS v. LEWISTON, B. & B. ST. RY. CO. (two cases).
• Court: Maine Supreme Court

70 A. 1047

104 Me. 39

DENIS

v. LEWISTON, B. & B. ST. RY. CO. (two cases).

Supreme Judicial Court of Maine.

Feb. 26, 1908.

(Official.)

On motion from Supreme Judicial Court, Androscoggin County.

Two actions on the case against the Lewiston, Brunswick & Bath Street Railway Company, one by Joseph Denis for injuries to the person and property, and the other by Josephine Denis for injuries to the person alone.Verdict for plaintiff in eacli case, and defendant moves to set the same aside.Motion sustained as to Joseph Denis, and overruled as to Josephine Denis.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, SAVAGE, SPEAR, and CORNISH, JJ.

Harry Manser and Enoch Foster, for plaintiffs.

Wm. H. Newell, for defendant.

WHITEIIOUSE, J.The plaintiffs in these two actions are husband and wife, and each recovered a verdict for injuries received from a collision of their team with the defendant's car at the junctions of Main and Pettengill streets, in Lewiston.The two cases arose from the same state of facts, and were tried together upon the same evidence.They come to the law court on motions to have the verdicts set aside as against the evidence.

The following uncontroverted facts appeared in evidence:

The plaintiffs resided in Auburn, and on the evening of March 4, 1907, with their little daughter, six years of age, rode over onto Main street, in Lewiston, with a horse and sleigh, to the house of Henry Brooks, situated on the south side of the street, arriving there soon after 8 o'clock.They remained there until about a quarter before nine, when they started with their horse and sleigh to drive down Main street onto Pettengill street for the purpose of calling at the house of Frank Brooks, who lived on that street.

Opposite tile residence of George Benrce is a curve in Main street, and for a distance of 72 rods from that curve down to the center of Pettengill street at its junction with Main the railroad track, as well as the street, runs in a straight line and on a descending grade of 3 per cent. practically all the way.The railroad track is located on the south side of Main street, very near the sidewalk and across the mouth of Pettengill street, which enters, hut does not intersect Main street.The driveway just below the house of Henry Brooks, from which the plaintiffs started to drive down to Pettengill street, is 40 rods below the curve in Main street above mentioned, and 32 rods above the center of Pettengill street.There was a side track or turn-out 330 feet long opposite the house of Henry Brooks, and, although it was not in use at that season of the year, the trolley and track switches remained in place.The night was quite dark, but an electric arc light was located on the north side of Main street, opposite the mouth of Pettengill street, and was shining on the evening in question.The section of Main street mentioned is a residential portion of the city, and the street was illuminated to some extent by the artificial lights in the dwelling houses situated on both sides of the street.

On this line of railway the cars run from the head of Lisbon street up Main street two miles to the State Fair Grounds, and return, making the four miles in 20 minutes, including all stops and changes.It also appeared that a short time before the running schedule had been shortened from 30 minutes to 20 minutes.

When the plaintiffs left the house of Henry Brooks that evening, as above stated, and went down Main street toward Pettengill street, the car was on its return trip from the Fair Grounds, and went down behind the plaintiffs' team.Denis was driving down the street "not quite in the center," but nearer the railroad track, traveling at the rate of about six miles an hour, and when he had turned to go Into Pettengill street, and the horse had passed substantially across the track, the defendant's car struck the team, threw out the occupants, and carried them some distance beyond Pettengill street, eausing the injuries complained of in the plaintiffs' writs.

1.It is alleged in the plaintiffs' declarations, and contended in argument, that the evidence warranted the jury in finding that at the time in question the defendant's car was negligently run at an unreasonable and dangerous rate of speed on the descending grade of Main street toward the junctions with Pettengill street, and that due care was not exercised by the motorman to have his car under such control as it approached the junctions that he would be able to stop it in season to avoid a collision with the plaintiffs' team in the event that the latter should be turned and driven across the track into Pettengill street.

It has been seen that the schedule time on this trip involved an average speed of 12 miles an hour.This rate was necessarily diminished somewhat in taking the trolly switch near the house of Henry Brooks, but the remaining distance of 25 rods from the lower end of the switch to Pettengill street was on a descending grade.When the plaintiffs came out of the driveway at the Brooks house onto the railroad track, their view was unobstructed for a distance of 40 rods up to the curve in the street above mentioned, and they both testify that they looked up the track to see if the car was coining, and that none was in sight at that time.Traveling at the rate of six miles an hour, they only required one minute to traverse the distance of 32 rods to Pettengill street.But the team was overtaken by the car, and, if the latter had not reached the curve at the time, the plaintiffs started, it must have run at the rate of about 14 miles an hour in order to traverse the distance of 72 rods during the one minute required for the team to travel 32 rods.

The great momentum which the car had acquired when it reached the crossing, as shown by the distance covered by it after the collision, tends strongly to support the conclusion that it had attained a high rate of speed.The motorman states that he reversed the power when about 30 feet distant from the crossing as soon as he saw the plaintiffs turn to cross the track, and the witnesses for the defense agree that this was the most effective means of stopping the car.Although there is a sharp conflict of testimony in regard to the exact distance traversed by the car after the collision, there was evidence which would have authorized the jury to find that the injured plaintiffs and the sleigh were carried by the car 110 feet beyond the crossing.

The motorman also admits that he saw the plaintiffs' team when the car was 25 rods distant from the crossing, and it is established by the weight of evidence that he immediately commenced sounding the gong to warn the driver of the plaintiffs' team.There is no evidence, however, that the speed of the car was slackened until the power was reversed 30 feet from the crossing.It is suggested on the part of the defence that the plaintiffs paid no attention to the sounding of the gong, and gave no indication of their purpose to cross the track at Pettengill street, and hence that there was no occasion to moderate the speed of the car.But it is not in controversy that the street was so well lighted by the lights in the dwelling houses, the are light opposite the mouth of Pettengill street, and by the headlight of the car that the team was plainly visible to the motorman, and the color of the horse distinguishable.The evidence warranted the jury in finding that, by reason of the jingling of the sleigh bells, the sound of the gong was not heard by the plaintiffs, and that, by the exercise of reasonable' care and vigilance, the motorman might have drawn the inference from their conduct that the gong was not heard by them.In the exercise of due care, he would have seen that they were driving along near the railroad in ignorance of the rapidly approaching car, and he should have considered that, if they intended to cross the track at Pettengill street, they could not reasonably be expected to show any indication of their purpose until they arrived at a point so near the junction that with the speed at which the car was then running it would not be possible, with any agencies at his command, to stop it in season to prevent a collision if the team in fact attempted to cross.

The law governing the rights and duties of the proprietors of street railways and travelers with ordinary teams in their relations to each other has been so critically examined and fully considered, both upon reason and authority, in the recent decisions of this court, that no extended discussion of the rules applicable to the case at bar is here required.Flewelling v. Railroad, 89 Me. 585, 30 Atl....