Dornberger v. Maine Cent. R. Co.

• Court: Maine Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Dornberger v. Maine Cent. R. Co., 91 A. 865, 112 Me. 559 (Me. 1914)
• Decision Date: 14 September 1914
• Parties: DORNBERGER v. MAINE CENT. R. CO.

91 A. 865

112 Me. 559

DORNBERGER

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Sept. 14, 1914.

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

Action by J. B. Dornberger against the Maine Central Railroad Company. On motion by defendant for a new trial. Motion sustained.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Merrill & Merrill, of Skowhegan, for plaintiff. Johnson & Perkins, of Waterville, for defendant.

PER CURIAM. The accident occasioning the injury for which plaintiff seeks the recovery of damages occurred on defendant's railroad at a point between Crawford Station and Crawford Notch. The distance between the station and notch is about 900 feet, and at either end is a cut. That from the notch west is about 375 feet long, while the length of the other, or western cut, is about 250 feet. In the space between these cuts, the land upon one side is either level with the roadbed or slopes below its level. In winter the snow is thrown by the snowplows against the sides of the two cuts, forming perpendicular walls of snow and ice some five or six feet high. As the plows are wider than the trains, the cuts afford a narrow space on either side of a train. While the cuts were in this condition early in the morning of March 2, 1912, plaintiff was directed to investigate the condition of signal 847 near the western end of the western cut. The wind was blowing and the snow drifting during the day.

To remedy the difficulty he found existing made it necessary for him to pass several times through the cuts. At about 11:55 in the forenoon he was making his third or fourth trip and, proceeding westerly, had reached about the middle of the western cut when he was overtaken by a snowplow and, being unable to climb the precipitous wall of snow and ice, was injured. At the time of the accident, the plaintiff had held the position of signal maintainer for defendant for about eight months and been in the employ of defendant for about two years. That he knew that snowplows were necessarily and frequently employed and often preceded the passage of trains by a short interval of time was the result of his experience. He was also familiar with the general manner of operating the plows and knew that the plow usually preceded the locomotive as was the case at the time of the accident. He was also aware that a passenger train from the east was due at Crawford Station at 12:02 p. m.

It is clear that no...