Grows v. Maine Cent. R. Co.

• Decision Date: 24 April 1879
• Citation: 69 Me. 412
• Parties: WILLIAM W. GROWS v. MAINE CENTRAL RAILROAD COMPANY.
• Court: Maine Supreme Court

69 Me. 412

WILLIAM W. GROWS v. MAINE CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Maine.

April 24, 1879

ON MOTION AND EXCEPTIONS.

CASE for personal injuries received at a railroad crossing. The action was before the court on demurrer. See 67 Me. 100.

The allegation relating to due care in the original declaration was: " And sad plaintiff, knowing that he could not turn his said team in said lane, and believing that he could get his said team over and across said crossing before said train would reach the same, and that he could secure his safety in no other way, and, supposing that said train was approaching at an ordinary rate of speed, urged his said horse forward and used his utmost exertions to get his said team over said crossing before said train should arrive at the same, which he could well have done if said train had been moving at an ordinary rate of speed."

And in the amended declaration: " And said plaintiff, knowing that he could not turn his said team in said lane, and knowing that he had ample time to pass over said crossing before said train would reach the same, if said train was moving at an ordinary rate of speed, as he supposed it then was, and believing that it would be impossible for him to stop his said horse when thrown into a sudden fright, as he was, by the said train, which was then approaching almost in his rear, he allowed him to dash forward without any check except so much as was necessary to guide him and prevent his overturning said wagon, and used his utmost exertions to get his said team over said crossing before said train should arrive at the same, which he could well have done if said train had been moving at an ordinary rate of speed.

The plaintiff submitted certain requests for instruction; which the view taken by the court renders it needless to report.

Upon the evidence in the case it was contended in argument by the plaintiff's counsel that the engineer, under the peculiar circumstances of the case, when he first saw the plaintiff in the way moving towards the crossing, had no right to assume that the plaintiff had seen the train or even knew that it was approaching, and that the law required him to use due care to avoid injuring the plaintiff after he saw him in peril; and that the fact that the engineer did not then sound the whistle, or give the plaintiff any warning, taken in connection with the fact that no statute signals had previously been given, and that the engineer, after he saw the plaintiff, kept no lookout to watch him, and allowed his train to continue on at the same high rate of speed as before, was a fact to be considered by the jury in support of the allegation that he ran his train recklessly, after he saw the plaintiff in peril.

Upon this point the presiding justice charged the jury in the following language, in which it is claimed that he made an erroneous statement as to the evidence upon a material fact, and expressed an opinion upon issues of fact arising in the case in disregard of chapter 212 of the public laws, 1874:

" Upon this branch of the case, I do not perceive any necessity whatever for me to consider the question whether this was a road where the statute signals were required or not. There is no evidence in the case that the conductor or the engineer saw the plaintiff sooner than the plaintiff saw the train--about thirty-eight rods distant as they were coming out of the cut, as I recollect it, is the testimony when each saw the other. From the time the plaintiff saw the train he had all the notice the statute signals would give him, and, as was said in the opinion of the law court, ‘ vision was better than hearing.’ The object of the statute signals was to give the plaintiff notice that the train was approaching, and if as soon as the engineer saw the plaintiff, the plaintiff saw the train, then so far as this averment in the writ is concerned, that the engineer ran recklessly after seeing him, it is entirely immaterial whether the statute signals were given or not. The averment of the plaintiff upon this branch of the case is that the engineer recklessly ran his train after he saw the plaintiff. The plaintiff saw the engineer as soon as the engineer saw him, so that it does not tend to sustain or disprove this allegation to show that the statute signals were not given. If they were required before the engineer saw him it does not tend to sustain this allegation that the engineer recklessly ran his train after he saw him; and whether they were given after the engineer saw him or not is immaterial because the plaintiff had seen the train, and the ringing of the bell or sounding of the whistle would be no more warning to him than seeing the train itself."

The verdict was for the defendants, and the plaintiff alleged exceptions and also filed a motion to set aside the verdict as against the weight of evidence and against law.

F. Adams & A. W. Coombs, for the plaintiff, filed a very elaborate argument, citing: Shear. & Redf. Neg., §§ 30, 31. State v. Railroad, 52 N.H. 557. 1 Hill. Torts, 142. 1 Redf. Rail. 567. Whart. Neg., § 304. Railroad v. McElwell, 67 Pa.St. 311. Detroit, etc., R. R. v. Van Steinburg, 17 Mich. 99. 28 Eng. L. & Eq. 48. Penn. Car. Co. v. Bentley, 66 Pa.St. 30. Railroad v. Stout, 17 Wall. 657. Webb v. P. & K. R. R., 57 Me. 117. Hobbs v. Eastern R. R., 66 Me. 572. Lar rabee v. Sewall, 66 Me. 376, 380. Shear. & Redf. Neg., §§ 25, 26, 27, 28 and 33. R. S., c. 51, § 17. Bradley v. B. & M. R. R., 2 Cush. 539. Linfield v. Old Colony R. Co., 10 Cush. 561.

J. H. Drummond, for the defendants.

VIRGIN J.

When this case was before this court on demurrer, (67 Me. 100) it was decided that the allegations in the original declaration relating to the plaintiff's...