Guthrie v. Maine Cent. B. Co.

• Decision Date: 05 June 1889
• Citation: 18 A. 295,81 Me. 572
• Parties: GUTHRIE v. MAINE CENT. B. CO.
• Court: Maine Supreme Court

18 A. 295

81 Me. 572

GUTHRIE

v. MAINE CENT. B. CO.

Supreme Judicial Court of Maine.

June 5, 1889.¹

Report from supreme judicial court, Penobscot county.

Action for personal injuries by William Guthrie against the Maine Central Railroad Company. The plaintiff, being a minor, sues by his next friend.

Jasper Hutchins, (P. H. Gillin, of counsel,) for plaintiff. F. A. Wilson and C. F. Woodard, for defendant.

DANFORTH, J. The plaintiff seeks to recover damages for an injury suffered by him while he was in the employment of the defendant as a servant, and in the execution of his duties as such. The case is reported upon the plaintiff's testimony alone, with the proviso that if the action is maintainable it is to stand for trial; otherwise to be nonsuit. It appears that a freight-train stood upon the track of the defendant's railroad, at the station in Bangor, ready to be started for Waterville. To this train was attached a freight-car, from the rear end of which the bumpers and draw-bar had been broken. Such was the grade out of the station towards Waterville that it was necessary to render some extra assistance to start this train upon its way. In order to do this, another train, consisting of an engine and about eight cars, upon which the plaintiff was a brakeman, was backed towards the Waterville train, with a view of coupling to it and pushing it over the grade. On approaching the Waterville train, the conductor of the assisting train ordered the plaintiff, who was on top and about midway of it, to "run ahead and make the hitch." The plaintiff started, in obedience to the order, but before its execution was accomplished the accident happened, and he became unconscious. As there is no witness who saw him at the time, we have no direct testimony as to the manner in which the injury occurred.

These facts present the first question raised in this case; that is, whether the proof is sufficient to authorize the jury to come to the conclusion that the injury was caused in whole or in part by the defective car. If not so caused, there is no ground disclosed upon which the action can be maintained against the company. If it was so caused, as it is the duty of the company to provide suitable cars, and exercise due care in keeping them in repair, the action can be sustained, if made out in other respects. The same result would follow if such was the effective proximate cause, even though the negligence of a fellow-servant might have contributed to the accident. It is true the company in this case would not be responsible for the negligence of a fellow-servant. Neither would the plaintiff. Nor can a party be relieved from the consequences of his own want of care by the intervention of the wrong of a third party, when that wrong was contributory only. Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 Mass. 575. Could, then, the jury have fairly come to the conclusion that the defective ear was the efficient cause of the injury? The plaintiff testifies that, when the order was given, "I started to run across the cars to make the hitch." Subsequently, he says, "I started to make the hitch." Between these statements there is some testimony indicating some things he had done towards making the coupling, or which may be understood as stating the manner of doing it. There is also testimony of the surgeons showing the nature of the injuries, and, by inference, how they must have been caused. The plaintiff's counsel seems to understand and assume that the plaintiff had made some progress in the execution of the order, at least so far as to have begun to descend the ladder, necessary to reach the place of coupling, and thus, being between the defective car and the one to be attached, was there caught and injured. The defendant views it differently. Hearing the testimony would probably give a better understanding of it than a report. Taking all the testimony together, with the fact, which should not be overlooked, that the case discloses nothing to show that the accident could have happened in any other way, we think it should be submitted to the jury.

The second question raised is whether the plaintiff is shown to have been in the exercise of due care at the time of the accident. The degree of care required is not in dispute; nor is it denied that it is a question for the jury. But it is denied that the plaintiff has affirmatively discharged the burden resting upon him of showing that he was not guilty of negligence which contributed to the accident. This, at best, is a negative kind of proof. It is not necessary, nor is it ordinarily expected, that any positive act of care shall be proved. If there is any fault, that is usually susceptible of proof. But the absence of fault, with evidence of circumstances which naturally exclude it, is sufficient. Magnire v. Railroad Co., 146 Mass. 379,15 N. E. Rep. 904.

It would seem to be a fair inference from the testimony that the plaintiff, though some years under his majority, had sufficient intelligence and experience to enable him to understand and appreciate the dangers attendant upon the service to be performed. He well...