Flewelling v. Lewiston & A. H. R. Co.

• Decision Date: 24 February 1897
• Citation: 89 Me. 585,36 A. 1056
• Parties: FLEWELLING v. LEWISTON & A. H. R. CO.
• Court: Maine Supreme Court

36 A. 1056

89 Me. 585

FLEWELLING

v. LEWISTON & A. H. R. CO.

Supreme Judicial Court of Maine.

Feb. 24, 1897.

(Official.)

This was an action on the case by Samuel G. Flewelling against the Lewiston & Auburn Horse-Railroad Company to recover damages for personal injuries sustained by the plaintiff in a collision between one of the defendant's electric cars, and the plaintiff's horse and road cart, which he was driving along Pine street, in the city of Lewiston, April 25, 1895. The jury returned a verdict for the plaintiff, damages $2,797.85, and defendant moves for new trial. Overruled.

Plaintiff's first count alleged a great and unlawful speed of the car, and the consequent loss of control of the car. His second count alleged a rate of speed in excess of that allowed by the city ordinance.

Second Count of Declaration.

"Also for that the said defendant corporation, on the 25th day of April, 1895, owned and was then operating a street railway in said Lewiston, and then and there using its said business cars driven along the street by means of electricity; that on said day, while the plaintiff was lawfully driving his team, consisting of his horse and road cart, to which his horse was properly harnessed said horse, harness, and road cart being then and there suitable and proper to be used by him, over and upon Pine street, a public highway in said Lewiston whereon said defendant was then and there maintaining its track and operating and driving its cars as aforesaid, said plaintiff being then and there in the exercise of due and proper care, and without negligence on his part, an electric car of the defendant, then and there managed, controlled, directed, governed, and operated by the servants and agents of the defendant, said car being then and there propelled by the defendant at a rats of speed greatly in excess of the maximum rate of speed prescribed by law and the ordinances of the city of Lewiston in such case made and provided, and in violation of said ordinances, was then and there, negligently, carelessly, and at an undue, unreasonable, dangerous, and unlawful rate of speed, driven by the said defendant against the road cart containing the plaintiff, so that the plaintiff was then and there thrown suddenly and with great force and violence from his seat down upon the ground, and upon the track of the defendant, was stunned by the fall, his right hand run over by a wheel of said car, his body bruised and jammed, his leg and body severely burned by the electric current, and he then and there sustained other great and painful bodily injuries, external and internal, in consequence of which he suffered greatly in body and mind, was compelled to have his said right hand amputated, to submit to a long course of medical and surgical treatment for his recovery from said injuries, and put to great expense for medicine, medical attendance, and nursing, and has been otherwise greatly damaged. Plea, general issue."

The plaintiff offered testimony showing that on April 25, 1895, Fast Day, about 3 o'clock in the afternoon, he was driving on Pine street in Lewiston, on the right-hand side of the street, in a road cart, so-called, a two-wheeled vehicle, drawn by his horse four years old, and weighing about 1,100 pounds,—a horse of gentle disposition, well broken to harness, and accustomed to electric cars. At a point in said street opposite the residence of Z. Blouin, he met a car of the defendant corporation. The sidewalk was full of people going to a ball game. The track of the defendant was in the center of the street, which is 50 feet wide from street line to street line outside limits. The street along by the place of the accident is practically level.

The horse of the plaintiff and the car of the defendant, coming from opposite directions, were approaching each other. The horse, when at a point about 60 feet or more from the approaching car, began to act afraid of it, and tried to sheer towards the sidewalk. The plaintiff reined his horse firmly, to keep in the street and avoid running down the people on the sidewalk. The car, as the plaintiff's evidence shows, was running very fast, and the heavy current was snapping and buzzing on the trolley line. The spectacle...