Hobbs v. Eastern R. Co.

• Decision Date: 28 August 1876
• Citation: 66 Me. 572
• Parties: JAMES HOBBS, administrator, v. EASTERN RAILROAD COMPANY. 1875.
• Court: Maine Supreme Court

66 Me. 572

JAMES HOBBS, administrator, v. EASTERN RAILROAD COMPANY.

1875.

Supreme Judicial Court of Maine.

August 28, 1876

ON EXCEPTIONS AND MOTION.

CASE for negligence of the defendants, whereby the plaintiff's intestate was so injured that she died. The full stenographic report of evidence and charge made part of the case on both motion and exceptions.

The declaration, with some other necessary averments, alleges that on November 6, 1872, the defendants carried the plaintiff as a passenger for hire, from North Berwick to South Berwick junction, arriving in the night time, and were negligent in not affording the intestate proper time or means of departure from the cars, and in the management and control of their engine and cars, that while she was in the act of departing from the cars, the defendants, suddenly and without warning to her, started their engine and cars backward with great force, whereby she was thrown under the wheels and run over by the cars, by reason whereof her arm was crushed and severed from her body, and that she was otherwise injured and thereby suffered great pain of body and anxiety of mind put to great expense, and rendered unable to live.

The evidence tended to show that she was injured in the manner alleged; that she was taken home, some thirty rods, by her husband, who was an employee of the railroad at the station that a surgeon was called and amputated the arm, and that she died in the afternoon of the next day; that the train was made up of cars belonging to two railroads, the Eastern ahead, and the Boston & Maine in the rear, all drawn by one engine; that the cars of the two companies separated at the junction; that the Boston & Maine end of the train was detached about a quarter of a mile from the station at the South Berwick junction, the usual place; that a switch divided the trains about fifty rods from the depot, and the Eastern train ran some two hundred feet past the depot, and then suddenly backed without the signal which the rules of the company required; that the cars had arrived at the platform, and were still in motion when she attempted to alight, and somehow went under the moving train. The defendants' theory was, that she held to the rail with her right hand, having her valise in the left, facing the rear end of the car, that in stepping towards the platform, without releasing her hold, she swung around and fell on her face, her left arm under the cars; but to this theory the plaintiff's counsel did not agree. There was evidence further tending to show that she was warned before alighting, not to get off while the cars were in motion, and that there would be time enough after the cars stopped.

The exceptions state thus: Against the seasonable objection of the defendants, the plaintiff was permitted to introduce in evidence a book entitled: " General rules and regulations of the Eastern Railroad," " For employees only." " August 5, 1872." " First edition" --and to read from the same at his pleasure, and the book went to the jury, and was by them carried to the jury room.

The defendants requested the presiding judge to instruct the jury, " that if any want of due and ordinary care on the part of Mrs. Hobbs contributed in any degree to cause the accident, resulting in her death, the plaintiff cannot recover." The judge gave appropriate instructions as to ordinary care and contributory negligence, but added: " What were the exact circumstances there that night? You do not know precisely; you haven't it from living witnesses. Nobody that has testified saw Mrs. Hobbs come away from that train, leave that car… … There is no doubt of one fact, and it is admitted that she was fatally injured there. Just how it was done, there is no evidence that I am aware of, except such as may be inferred from such facts as you have. Whatever was done by her, was she in the exercise of due and ordinary care? If she was, and the railroad company was at fault, under the instructions I have given you, this plaintiff has a right to your verdict. If she was not in the exercise of due and ordinary care by getting out upon that platform while the cars were in motion, backing upon the track to adjust themselves to the station, then there is one further question. Although the railroad company was in fault, and though the plaintiff was also in fault by not being in the exercise of due and ordinary care, still, if her want of care did not contribute to the injury, she can recover."

The defendants requested to have the jury instructed: " That if Mrs. Hobbs stood upon the lower step of the foot-board, encumbered with baggage, and attempted to alight therefrom while the train was in motion, this was such negligence as to preclude the plaintiff from maintaining this action." This instruction the judge declined to give, but left it to the jury to say whether, upon the whole facts, the negligence, or want of due and ordinary care, of Mrs. Hobbs, contributed at all to produce the injury which resulted in her death.

The verdict was for the plaintiff, for $5000; and the defendants alleged exceptions.

E. B. Smith, with whom was I. T. Drew, for the defendants.

G. C. Yeaton, for the plaintiff.

VIRGIN J.

This is an action on the case brought to recover damages for personal injuries sustained by the plaintiff's intestate a passenger on one of the defendants' trains. The injuries were fatal, and are alleged to have been the result of negligence on the part of the defendants' servants in the management of the train. The verdict was for the plaintiff in the sum of five thousand dollars, and the case comes before this court upon exceptions and a motion for a new trial.

The first exception to the admission of the book containing the rules of the defendant corporation, is not insisted upon in the argument and cannot be sustained. The admission of the book as part of the evidence in the case for the purposes and under the limitations...