Flood v. Belfast & M.L.R. Co.

• Decision Date: 12 June 1961
• Court: Maine Supreme Court
• Parties: Carmelita M. FLOOD, Lester M. Flood, Neil N. Flood, pro ami, Rita M. Flood, pro ami, v. BELFAST AND MOOSEHEAD LAKE RAILROAD CO.

Page 433

171 A.2d 433

157 Me. 317

Carmelita M. FLOOD, Lester M. Flood, Neil N. Flood, pro ami Rita M. Flood, pro ami, v. BELFAST AND MOOSEHEAD LAKE RAILROAD CO.

Supreme Judicial Court of Maine.

June 12, 1961.

Anthony J. Cirillo, Pittsfield, Abraham J. Stern, Bangor, for plaintiffs.

Hillard H. Buzzell, Clyde R. Chapman, Belfast, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

WILLIAMSON, Chief Justice.

These four tort actions under the old rules arise from a grade crossing collision in which a freight train struck an automobile. The plaintiffs are Lester M. Flood, the driver of the car, his wife Carmelita, his daughter Rita, then about 9 years old, and his son Neil, then about 13 years old. The cases, tried together before a jury, reach us on exceptions to the direction of a verdict for the defendant in each case.

Under the familiar rule, the main issue is whether there was sufficient evidence which, if believed, would warrant a jury in finding in each case negligence on the part of the railroad and freedom from contributory negligence on the part of each plaintiff. Jordan v. Portland Coach Co., 150 Me. 149, 107 A.2d 416; Ward v. Merrill, 154 Me. 45, 141 A.2d 438.

There are two issues neither of which, in our view, controlled the decision of the presiding justice, which we shall dispose of for convenience at the outset.

First: The defendant seriously urges that the evidence would not warrant a finding that the Belfast and Moosehead Lake Railroad Co. operated the freight train. It does not deny that it operated the train, but argues that the plaintiffs did not prove the fact.

The time of twelve jurors and the Court was unnecessarily taken with listening to testimony with objections by the defendant designed to prove this simple fact. The record sufficiently shows that the accident took place on the defendant's track. It does not demand, nor could it well demand, more proof that it was a railroad company operating a railroad.

Under these circumstances there plainly arisea a presumption that the defendant was operating the train. Common sense requires such a presumption. Surely it would have been strange had the plaintiffs called, let us say, the president of the railroad, or its chief engineer, or other officials with records, to prove what was so likely to be the fact and so easily disproved by the railroad if it were not.

If more evidence were needed to bring a reasoning mind to this conclusion, it may be found in the record. The plan admitted by agreement showed the track of the 'Belfast Moosehead Lake Railroad.' The defendant itself introduced pictures of the railroad. A witness from the vicinity saw the name of the defendant railroad on the engine in question. Lake Erie & W. Railway Co. v. Carson, 4 Ind.App. 185, 30 N.E. 432; East St. Louis Connecting Railway Co. v. Altgen, 210 Ill. 213, 71 N.E. 377; Peabody v. Oregon Railway & Navigation Co., 21 Or. 121, 26 P. 1053, 12 L.R.A. 823; Brooks v. Mo. Pac. Ry. Co., 98 Mo.App. 166, 71 S.W. 1083; 74 C.J.S. Railroads § 374.

Second: The defendant in its brief says:

'* * * his (driver's) negligence was imputable to his wife on the theory of a joint enterprise, since the evidence disclosed that they were going to Pittsfield to obtain groceries and his negligence was imputable to the children on the ground that he was their guardian and that his negligence was imputable to them.'

The argument is not sound. There is no evidence of joint control of the automobile. The husband was the driver; his wife a passenger. The children were not infants unable to care for themselves. There was no imputed negligence under the circumstances. Illingworth v. Madden, 135 Me. 159, 166, 192 A. 273, 110 A.L.R. 1090; Gravel v. LeBlanc, 131 Me. 325, 162 A. 789; Ham v. Maine Cent Railroad Co., 121 Me. 171, 177, 116 A. 261; Whitman v. Fisher 98 Me. 575, 57 A. 895; State v. B. and M. R. R. Co., 80 Me. 430, 15 A. 36.

Without reaching into detail, the jury could have found as follows: Distances and directions are given approximately. The collision took place at a grade crossing near Winnecook station between Burnham and Unity about noon on a misty, foggy, wet day in February 1956. The track runs north and south and the highway east and west. Neil characterized the visibility, or lack of visibility, in this testimony:

'Q. You looked up in that direction?

'A. Yes. It was kind of misty and foggy.

'Q. On account of the mist and fog you might not have been able to see the train which was there?

'A. Yes.'

The plaintiff driver, who lived 400 feet east of the track, started with his family westerly to cross the track on his way to Pittsfield. On the front seat were the driver, his wife Carmelita in the middle, and his daughter Rita on the right, and in the rear of the car was his son Neil. The road was icy and slippery. There were railroad signs of 'R. R.' or 'Railroad Crossing' a few feet westerly of the driver's home and also a few feet from the track. There were no gates or automatic signals at the crossing.

The track runs on a straight course for 1500 feet north of the crossing which is visible for the entire distance. At about 1000 feet from the crossing is a whistle and bell sign. From 200 feet easterly of the track an approaching train would be visible from 400 or 500 feet north of the crossing.

The plaintiff testified in substance that while proceeding at 10 miles per hour he looked toward the north for approaching trains when he was 300 feet from the crossing, saw nothing, and continued at the same speed without stopping; that he heard no bells or whistles; that when his car was on the track his son called, 'Daddy, the train,' and his wife said, 'Step on it'; that the wheels spun and he was unable to escape.

His wife, admitting she was no judge of distances, said she looked for the train apparently at about the place her husband looked; that she heard neither bell nor whistle, and that the first warning came from the son Neil when the car was on the track. Rita at no time saw the train. Neil, on the rear seat, with visibility impaired as stated, first observed the train when the car was on the track. There was further evidence from persons in the neighborhood that they heard neither bell, whistle, nor horn.

The train consisting of a locomotive with 14 freight cars came to a stop with the rear of the train 280 feet south of the crossing.

There were admitted in evidence by agreement as part of the plaintiffs' case, statements given by the engineer and fireman on the train to...