Grant v. Bangor Ry. & Electric Co.

• Decision Date: 09 May 1912
• Citation: 83 A. 121,109 Me. 133
• Parties: GRANT v. BANGOR RY. & ELECTRIC CO.
• Court: Maine Supreme Court

83 A. 121

109 Me. 133

GRANT

v. BANGOR RY. & ELECTRIC CO.

Supreme Judicial Court of Maine.

May 9, 1912.

On Motion from Supreme Judicial Court, Penobscot County.

Action by Elizabeth Grant, administratrix, against the Bangor Railway & Electric Company, to recover damages at common law for personal injuries sustained by her intestate, who was her child five years and three months old, by reason of being struck and run over by a street car of the defendant and which resulted in the death of the child a few hours after the injury. The declaration in the writ alleges that the deceased child "endured great conscious mental and physical suffering from the effects of her said injuries for a long period of time, to wit, from the time of receiving her said injuries until the time of her death," and the evidence shows that the child was conscious after her injuries and underwent great suffering. Verdict for plaintiff for $1,508. The defendant filed a general motion for a new trial. Overruled.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Fellows & Fellows, of Bangor, for plaintiff.

E. C. Ryder, of Bangor, for defendant.

CORNISH, J. This is an action on the case brought by the plaintiff, as administratrix of the estate of Ida Bernice Grant, her deceased child five years and three months old, to recover damages at common law for injuries sustained by her intestate by reason of being struck and run over by a car of the defendant on Harlow street in the city of Bangor, about 5:30 p. m. July 13, 1910, from which injuries the child died a few hours later. The case is before the law court on defendant's motion to set aside the verdict as against the evidence.

The following facts are fairly established: Mrs. Grant lived on the second floor of the National block on the corner of Harlow and Franklin streets. Harlow street runs in a general northerly and southerly direction, and the car in question was on its regular route, having come Into Harlow street from Cumberland street at a point 482 feet north of the place of the accident, and was passing southerly along the center of Harlow street toward Center street. Harlow street is one of the busy streets of the city, and the surroundings are such that motormen have special instructions not to run too fast on that street. The accident occurred about five feet below the Prospect street crossing, and in front of the playground in the yard of the high school. At this point the city was excavating a reservoir, so that the entire sidewalk and a portion of the street itself was blocked by the excavated earth, leaving a space of only two or three feet between the outside of this pile of earth and the track of the defendant. This narrow space was the walk in use. Cumberland street makes a sharp descent into Harlow street, and from the junction there is a continuous downgrade of 2 1/2 per cent. on Harlow street past the place of accident toward Center street. The motorman had been in the employ of the defendant since May 30, 1910, was a spare hand, and had been on this run three days.

Mrs. Grant, the mother, was obliged to go to a nearby market to purchase something for supper and left her five year old child for a few minutes on the sidewalk with the injunction to stay there, which the child promised to do. At the same time she called her older daughter, a girl of nine, and told her to watch her sister, which she also promised to do. The mother was gone only about 10 minutes, but the accident happened before her return.

It appears that the child did not remain where she was left, but walked along the sidewalk to the excavation and was seen standing by the reservoir about five or six feet from the track and eight feet from the crosswalk on Prospect street. She was looking into the reservoir with her back toward the approaching car. Then, in the language of an eyewitness called by the defendant: "She started across the track slowly until she was about in the middle of the track, when she turned slightly, and she saw the car, and she didn't know whether to continue and go across or come back. She seemed kind of dazed, and the car struck her on the forehead and knocked her down and run over her."

It further appears from the motorman's own testimony: That, as soon as he turned into Harlow street from Cumberland street, he saw the child standing near the track by the reservoir, and he watched her as she stood there all the time he was coming down the street, his vision being unobstructed. That he was coasting along Harlow street with the power shut off; that the car was moving in his judgment about 7 or 8 miles an hour. That he did not apply the brakes until he saw the child start to cross the street. That he was then about a car length or 30 feet distant. That he immediately put on the brake and reversed the power, but it was too late. The car struck the little girl where she was in the center of the track and ran over her. Reversing the power caused a fuse to blow out, which locked the wheels, and the car slid a distance of 2 1/2 car's length, or 75 feet, before it stopped. That the rail was wet and muddy owing to the work that was going on.

Witnesses for the plaintiff made the speed much greater than 7 or 8 miles an hour, some calling it 15 or 20, and others simply stating that the car was going very fast, so fast as it came out of Cumberland street and continued its course down Harlow street as to attract their attention. The distance which the car went after the accident would seem to confirm this view; the motorman making it 75 feet, other witnesses more than 100.

Such is the picture, and as is usual in this class of cases, where it is fairly drawn, the legal conclusions that follow are quite apparent.

1. Defendant's negligence:

From the above statement of facts it is difficult to resist the conclusion that the motorman failed to exercise that degree of prudent and watchful care which the situation demanded, especially in using that degree of precaution in reducing the speed of the car and having it under his immediate control which the exigencies required.

The speed at which a car may be properly run and the kind of control which should be exercised over it must depend to some extent upon the surrounding circumstances and the situation ahead. No specific rate can be arbitrarily fixed. A speed of 13 miles an hour on Upper Main street in Lewiston under the there existing conditions was not considered necessarily dangerous and reckless in Malia v. St. Ry. Co., 107 Me. 95, 77 Atl. 541, while a much less rate was demanded where the track was near the sidewalk and private driveways were in frequent use in Butler v. Railway Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267, or in approaching public street junctions, as in Denis v. Railway Co., 104 Me. 39, 70 Atl. 1047. A similar degree of caution should be observed in passing public playgrounds or where children are in the street. "The driver of a horse car in a street where there are children may well be required to manage his car with reference to all the risks that may reasonably be expected, and among these may be reckoned the risks arising from the heedlessness and indiscretion of children in the street." Collins v. So. Boston R. R., 142 Mass. 301, 7 N. E. 856, 56 Am. Rep. 675.

The motorman, in the case at bar, admits that he saw this little girl as she was standing only 5 or 6 feet from the track when he was nearly 500 feet away. She stood there facing away from the car and apparently unaware of its approach. With the indiscretion of childhood, she might be expected to step across the track; at least, it might not be unexpected. Yet, with this combination facing him, a street crossing, a nearby playground, an obstruction on one side of the street, and a little child perilously near the track and apparently oblivious of the approaching car, the motorman maintained his speed up to such a rate and to within such close proximity that when the child turned and attempted to walk across the tracks he could not sufficiently control the car to avoid collision. His efforts then were too late. And yet, it was not the unexpected, but what might reasonably be expected, which happened, and the reasonably prudent motorman would have foreseen it and guarded against it, either by stopping the car completely or by having it under such control that he could stop it almost instantaneously. This man did neither.

Nor does the alleged wet and slippery condition of the rails afford sufficient excuse. If that condition existed, it was known to no one better than to the man who had been running on this same circuit during the past three days while work upon the reservoir had been in progress, and therefore greater care was imposed upon him to counteract that condition by extra precautions, and by running his car at a lower speed and under better control than usual.

Upon the question of defendant's negligence, we think the verdict of the jury cannot be said to be manifestly wrong.

2. Contributory negligence on the part of the mother:

The second point raised in defense is that no recovery can be had because the child was negligently permitted by her mother to be upon the street unattended at the time of the accident The standard of age at which a child...