Fairbanks v. Bangor, O. & O. Ry. Co.

• Decision Date: 25 February 1901
• Citation: 49 A. 421,95 Me. 78
• Parties: FAIRBANKS v. BANGOR, O. & O. RY. CO.
• Court: Maine Supreme Court

49 A. 421

95 Me. 78

FAIRBANKS

v. BANGOR, O. & O. RY. CO.

Supreme Judicial Court of Maine.

Feb. 25, 1901.

(Official.)

Action by Helen F. Fairbanks against the Bangor, Orono & Oldtown Railway Company. Verdict for plaintiff. On motion by defendant for new trial. Sustained.

This was an action at common law by the plaintiff, as administratrix of the estate of Jesse A. Fairbanks, to recover damages for the death of her intestate, caused by a collision, September 17, 1898, with one of the cars of the defendant company on Central street, in the city of Bangor. The accident took place about 6:30 a. m., at the foot of the steep downgrade on the street northerly of Norombega Hall, and about 100 feet below the intersection of Harlow and Central streets. The case was tried at the January term, 1900, and a verdict rendered for the plaintiff for $5,200.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, FOGLER. and POWERS, JJ.

F. J. Martin and H. M. Cook, for plaintiff.

O. D. Baker, L. C. Stearns, and E. C. Ryder, for defendant.

FOGLER, J. This is an action on the case at common law, in which the plaintiff sues to recover damages for personal injuries sustained by her husband and intestate, Jesse A. Fairbanks, causing his death, through the alleged negligence of the servants of the defendant corporation. The jury returned a verdict for the plaintiff in the sum of $5,200. The defendant moves for a new trial on the grounds that the verdict is against law, against evidence and the weight of evidence, and that the damages awarded are excessive.

The defendant company is the owner and operator of an electric street railway runing from Oldtown into the city of Bangor, its tracks running along Central street from its junction with Harlow street to Hammond street. The plaintiff's intestate was the proprietor of a store on the southerly side of Central street. At about half past 6 o'clock on the morning of the 17th day of September, 1898, he was traveling along the northerly side of said street from its junction with Harlow street towards his place of business on the southerly side of Central street. He attempted to cross the railway track in front of one of the defendant's cars approaching him from Harlow street. The front end of the car struck the near hind wheel of the wagon, causing it, or the seat, to tip, and the plaintiff's intestate was thereby thrown from the seat, his head striking the pavement, and such injuries being thereby inflicted that he died by reason thereof five days thereafter.

The defendant contends that the verdict should be set aside upon two grounds, namely: First, that the injuries to the plaintiff's intestate were occasioned by his own negligence; and, secondly, that the defendant was guilty of no negligence.

We think that the motion should be sustained on both grounds.

Streetrailway companies have a right to use the streets upon which their tracks are placed. Travelers on foot or with teams have also the right to use such streets for purposes of travel. In the use of the street each must use ordinary care and prudence. The rule in this respect is thus stated in Atwood v. Railway Co., 91 Me. 402, 40 Atl. 68: "Highways are constructed and maintained for the accommodation of travelers, and not as places of resort for business negotiations or social converse. All travelers with teams have equal rights on the highway, but each must exercise his right in a reasonable manner, and use the way with due regard to the rights of others. And, since highways have been subjected to a new mode of use by the introduction of street railways, a still higher degree of attention, vigilance, and prudence is requisite to fill the measure of ordinary care demanded of the traveler."

And in Flewelling v. Horse Railroad Co., 89 Me. 593, 36 Atl. 1057, it is stated: "Electric street cars have, in a qualified way, at least, the right of way as against persons on foot or traveling with carriages and teams in...