Giberson v. Bangor & A. R. Co.

• Citation: 36 A. 400,89 Me. 337
• Parties: GIBERSON v. BANGOR & A. R. CO.
• Decision Date: 28 November 1896
• Court: Supreme Judicial Court of Maine (US)

36 A. 400

89 Me. 337

GIBERSON

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

Nov. 28, 1896.

(Official.)

This was an action brought by the plaintiff, Elizabeth R. Giberson, as administratrix of the estate of James Giberson, of Mars Hill, county of Aroostook, deceased, to recover damages sustained by the said Giberson in his lifetime, by reason of injuries received by him on account of being struck and run over by a train belonging to the Bangor & Aroostook Railroad Company, defendant, at Mars Hill.

The material acts of negligence alleged by the plaintiff in her declaration are as follows: "* * * Said James Giberson then and there, after said train had passed, and while said crossing was clear and unobstructed as aforesaid, and having no reason to apprehend the passing of another train, or section of a train, immediately after one had just passed, attempted to pass over said crossing, and did then and there slowly and carefully drive upon the same. But the said defendant corporation, by its servants and agents, and with its locomotive engine aforesaid, carelessly and negligently and without warning or safeguard of any kind, 'kicked back' said train of nine cars along said track and over said crossing with great force and violence, the said locomotive engine being then and there disconnected from said cars, and the said James Giberson being then and there lawfully upon said highway, and going over said railroad track at the crossing aforesaid; and the said train of nine cars then and there under the direction, management, and control of said defendant corporation was then and there, by said locomotive engine, which was then and there under the management, direction and control of the defendant corporation by its servants and agents as aforesaid, carelessly and negligently propelled, hurled, projected, and driven over said railroad and across said highway at the crossing aforesaid with great velocity and violence, directly against and upon the sled upon which the said James Giberson was then and there lawfully riding, and against and upon the said James Giberson. * * *

"And the plaintiff avers that after said locomotive engine and train of nine cars had passed over said crossing as aforesaid, and while the said James Giberson was attempting to pass along said highway, and over said track as aforesaid, there were none of the servants or agents of said corporation at said crossing; that there was no flagman, signal, or safeguard of any kind to show that said crossing was not then and there safe; and that before and when said cars were as aforesaid driven, forced, or 'kicked back' along said track, and over and upon the said James Giberson, as aforesaid, there was no warning by whistle or bell, and there was only one brakeman on all of said nine cars."

The jury returned a verdict in favor of the plaintiff for $1,000, and the defendant filed a motion for a new trial. Motion sustained.

V. B. Wilson, G. A. Gorham, Jr., and R. W. Shaw, for plaintiff.

F. H. Appleton, H. R. Chaplin, F. A. & D. A. Powers, and L. C. Stearns, for defendant.

EMERY, J. Grade crossings of railroads with common roads are places of obvious peril to the traveler upon the common road. The exigencies of modern railroad traffic require the running of frequent trains of heavy cars at considerable speed. If every railroad train or locomotive was to stop, or even materially reduce its speed, at every country road crossing, the great benefit of railroads to the public, viz. quickness and economy of transportation, would be greatly lessened, if not destroyed.

The traveler upon the common road is not seriously inconvenienced by the railroad crossings. Whether on foot or driving horses, he can easily stop or slacken his pace at any point, and easily renew his progress, without appreciable loss of time or power. If he be alert, and watchful for the passing train, he can usually check his own speed quickly enough to avoid a collision.

The obvious peril of collision at such crossings requires that the traveler upon the common road, when approaching a railroad crossing, should exercise a degree of care commensurate with the peril. He should bear in mind that he is approaching a railroad crossing, and that a train or locomotive may also at the same time be approaching the same crossing at great speed. He should never assume that the railroad track or crossing is clear. He should apprehend the danger, and use every reasonable precaution to ascertain surely whether a train or locomotive is near. He should, when near or at the crossing,...