Dyer v. Me. Cent. R. Co.
| Decision Date | 05 April 1921 |
| Citation | 113 A. 26 |
| Parties | DYER v. MAINE CENT. R. CO. |
| Court | Maine Supreme Court |
Exceptions and Motion from Supreme Judicial Court, Knox County, at Law.
Action by Mary A. Dyer against the Maine Central Railroad Company. Verdict for plaintiff, and defendant brings up case on motion and exceptions to refusal of presiding justice to order a verdict for the defendant. Motion sustained, new trial granted.
Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.
Arthur S. Littlefield, of Rockland, for plaintiff.
White & Carter, of Lewiston, and S. T. Kimball, of Rockland, for defendant.
The defendant corporation has, and in 1916 had a branch track crossing Pleasant street, Rockland, at grade. On August 29, 1916, an automobile in which the plaintiff was riding as a passenger was, upon this crossing, struck by the defendant's locomotive. The injuries were thus caused on account of which this suit is brought.
The plaintiff has recovered a verdict. The defendant brings the case to this court on motion and exceptions to the refusal of the presiding justice to order a verdict for the defendant. No gate or automatic signal was maintained, and no flagman stationed at this crossing. It does not appear that such safety devices had been ordered by the Public Utilities Commission or asked for by the city authorities. R. S. c. 56, § 73.
The mere fact, however, that such precautionary measures had not been ordered or prayed for does not necessarily exonerate the defendant. The requirements of the statute do not measure the full duty of a railroad company to the public.
"The common law still requires the exercise of care and prudence commensurate with the degree of danger incurred." Smith v. M. C. R. R. Co., 87 Me. 348, 32 Atl. 967, 970.
There are situations wherein, by reason of congested travel or other conditions, it would be manifestly negligent to run railroad-trains across unguarded streets, although no gate or other safety appliance had been officially ordered.
But it is plain that the Pleasant street crossing was not such a situation. The street was not a crowded thoroughfare. At the date of the accident it was used as a detour, owing to the temporary closing of another street. There is nothing to show that it was other than a residential street carrying a moderate amount of traffic.
We do not agree with the plaintiff's counsel that a branch line street crossing should be provided with gates merely because of its proximity to the main line. Train noises emanating from the main line may be in some degree confusing, but they are warnings admonishing the 'traveler to proceed with greater caution.
A signboard, as required by R. S. c. 56, § 72, was at the time of the accident maintained by the defendant. If the jury found the defendant corporation guilty of negligence by reason of the absence of other safety devices at the crossing, the verdict cannot be justified.
No whistle was sounded as the train approached the Pleasant street crossing. A bell was rung, however. This appears from the testimony of one of the plaintiff's witnesses. Being within the city limits, no whistle was necessary. R. S. c. 56, § 72.
The plaintiff contends that the defendant's train crossed Pleasant street at an excessive and negligent rate of speed. The statute provides that—
"No engine or train shall be run across a highway near the compact part of a town at a speed greater...
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Johnson v. Me. Cent. R. Co.
...The law does require that the Railroads exercise care and prudence commensurate with the degree of danger involved. Dyer v. Maine Cent. R. Co., 120 Me. 154, 113 A. 26; Smith v. Maine Cent. R. Co., 87 Me. 339, 32 A. 967. Under ordinary circumstances, it might have been argued that where ther......