Hoskins v. Bangor & A. R. Co.

• Decision Date: 24 November 1937
• Citation: 195 A. 363
• Parties: HOSKINS v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

195 A. 363

HOSKINS

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

Nov. 24, 1937.

On Motion from Superior Court, Piscataquis County.

Action by Jerry Hoskins against the Bangor & Aroostook Railroad Company. Verdict for plaintiff. On defendant's general motion for new trial.

Motion sustained, and cause remanded for new trial on damages only.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Durgin & Villani, of Milo, and Fellows & Fellows, of Bangor, for plaintiff. Henry J. Hart and Frank P. Ayer, both of Bangor, and Perkins & Weeks, of Waterville, for defendant.

STURGIS, Justice.

The plaintiff, a carpenter in the employ of the Bangor & Aroostook Railroad Company, brings this action to recover damages for injuries received on October 18, 1934, through the derailment of a gasoline-propelled section car on which he was riding from Schoodic to West Sebois to get material for repairs he was making on railroad property. It was proved and conceded at the trial that the defendant Railroad Company was a nonassenting large employer under the Workmen's Compensation Act and the defenses of contributory negligence of the employee, negligence of a fellow servant and assumption of risk were properly denicd. R.S., chap. 55, § 3. See section 4, as amended by Public Laws 1931, chap. 225, § 4. It appearing that the plaintiff's employment was purely intrastate, counts and pleadings under the Federal Employers' Liability Act, 35 U.S.Stat. at L 65, chap. 149, as amended (45 U.S.C.A. § § 51-59), were disregarded. The case was submitted to the jury on the single issue of whether the negligence of the driver of the section car was the proximate cause of the plaintiff's injury. The jury having returned a verdict for the plaintiff for $9,550, the Railroad Company files a general motion for a new trial on the ground that liability is not established and the award of damages is grossly excessive.

The evidence, admitted without objection, tends to show that the section car in which the plaintiff rode at the time of his accident was equipped with 16-inch flanged wheels in no way protected by guards, a platform body, and a raised seat divided lengthwise by an iron rail. It was operated by Roland Tweedie, acting foreman of the section, who was seated on the left side facing diagonally forward in a westerly direction. Another sectionman faced to the rear, and the plaintiff, sitting on the right side with his back to the center, had a quartering view, as it is termed, forward and easterly of the track. As the car, which left Schoodic right after the lunch hour, approached Packard's siding, an intermediate flag station, and was about 500 feet away, it was slowed down for a switch, but speeded up again and driven on towards the station at a rate of from 25 to 30 miles an hour. Suddenly, a rather small black and white dog came leaping and barking onto the track in front of the section car, derailing it and throwing the plaintiff and the sectionman between the rails. The driver jumped and landed safely on the ground; the car continuing on on the soft roadbed some little distance and until the engine stalled.

There was evidence, apparently credible and uncontradicted, which warranted the jury in finding that the dog had come from a house located about 50 feet west of the track, ran barking and leaping diagonally across a lawn, down into a shallow ditch, and, without stopping, directly on to the track; also that, although the dog's approach was at all times in plain view of the section foreman, he did not hear it barking or see it until it was about six feet to the left and four feet in front of the section car, and then had no opportunity to adequately apply brakes, slow the car, or avoid a collision and the resulting derailment. The foreman was fully acquainted with the operation of the section car and had repeatedly used it in his work. He admits that he was fully aware that if a dog got on the track in front of the car it might cause trouble, if he had seen the dog coming rapidly towards the track he would have slowed up or stopped and that would have avoided a derailment, and had he been looking in the direction from which it came he probably would have seen it coming over the rise back of the ditch and some little distance from the track, as there was nothing to obstruct his view for several hundred feet back down the track.

Rules of the company, introduced in evidence, require operators of motor section cars to run at a speed not greater than 20 miles per hour, carefully watch the track for obstructions, and keep the car under full control past stations and at other places where they may be required to stop quickly. Violation of analogous safety rules has been held to be evidence tending to show negligence. Stevens v. Boston Elevated Railway, 184 Mass. 476, 69 N.E. 338, and cases cited. If violation of these rules were not in the case, however, the proven facts warrant the finding of negligence. The foreman's failure to see the dog coming towards and upon the track in time to reduce the excessive speed of his car and bring it and keep it under control so that the derailment could be, avoided was clearly a proximate cause...