Huntington v. Bangor & A. R. Co.

• Decision Date: 14 May 1909
• Citation: 74 A. 802,105 Me. 363
• Parties: HUNTINGTON v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

74 A. 802

105 Me. 363

HUNTINGTON

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

May 14, 1909.

(Official.)

On Motion from Supreme Judicial Court Piscataquis County.

Action by Blanche G. Huntington, by her next friend, against the Bangor & Aroostook Railroad Company, to recover damages sustained by plaintiff in a crossing accident by defendant's alleged negligence. Plaiutiff recovered a verdict of $6,125, whereupon defendant moved in the Supreme Judicial Court to set the verdict aside. Motion sustained.

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, CORNISH, KING, and BIRD, JJ.

Hudson & Hudson, for plaintiff. Louis C. Stearns, F. H. Appleton, and Hugh R. Chaplin, for defendant.

CORNISH, J. This is an action on the case to recover damages for personal injuries received in a crossing accident, November 4, 1907, and conies to this court on defendant's motion to set aside a verdict for the plaintiff.

The crossing in question is over South Main street in the thickly settled portion of the village of Guilford. Ninety-one feet south of the crossing, an iron bridge, 174 feet long and 19 feet wide in the clear, spans the Piscataquis river. South of this bridge South Main street ascends a steep hill known as Bridge hill, at whose top is a public square. To a traveler going north, as was the plaintiff, the view of the railroad crossing from the square, a distance of between 400 and 500 feet, is clear and unobstructed, and remains so until the crossing is reached. The railroad track or a railroad train east of the crossing is discernible to such traveler only at intervals, owing to intervening buildings on the north side of the river.

For 25 years the railroad company has employed as a flagman one Clmpher, a harness maker, with a shop on the westerly side of the street, near to and south of the crossing. About 3 o'clock in the afternoon of the day of the accident the plaintiff, a girl of 19, started with a team from her home about 1 1/2 miles south of Guilford village, to go over the route above described to the schoolhouse situated north of the crossing in question, to bring her brothers from school, as was her custom. She was entirely familiar with the crossing and its approaches. The horse was 17 or 18 years old, had been her favorite family horse for a year, and was regarded as perfectly kind and safe. She herself was an experienced horsewoman, having driven since she was 8 or 9 years old. On arriving at the village square she walked her horse down Bridge hill, and while descending the hill says that she looked across the river, but did not see the flagman at the crossing. As she was entering on the bridge she looked down and across the river, but saw no train, although at various points one must have been plainly visible. She continued slowly across the bridge, either at a slow trot or a walk, and when she reached the north end she saw the flagman for the first time, as he was standing near the crossing and toward the westerly side of the street. He was not waving his flag, but the plaintiff readily interpreted the meaning of his presence, and immediately stopped, "because," as she testified, "I saw him with his flag." She had not then heard any bell or whistle or seen any approaching train. She remained stationary, the horse entirely docile and unfrightened, for what she says seemed to her a long time, when the engine and the forward cars of an exceptionally long freight train came into view at the crossing, moving from the east at the admitted rate of about four miles an hour, on an upgrade, with the noise usually attendant upon those conditions. The horse acted "all right" when the engine came into view, and while the engine and the first two or three cars were passing the crossing. Then the horse "started all of a sudden, kind of jumped like," as the plaintiff expresses it, or, as an eyewitness says, "All at once the horse shook his head, and made a rise right up on his hind feet and run toward the train." He dashed against it with such force as to throw the plaintiff from the wagon and beneath the train, from which she was rescued with the loss of her left hand at the wrist.

With this picture of the accident in mind, a picture drawn by the plaintiff herself, can the verdict be sustained? However much we may sympathize with the plaintiff because of her lamentable injury, we are unable to find the grounds upon which liability for its occurrence can be fastened upon the defendant. We will assume that there was sufficient evidence to warrant the jury in finding that the plaintiff was in the exercise of due care. The important question remains whether there was evidence that the accident was caused by the negligence of the defendant.

So far as the management of the train itself is concerned no negligence is charged. It is not controverted that in approaching the crossing the proper warnings were given, the whistle sounded, and the bell was rung, while the speed was only four miles an hour.

But the learned counsel for the plaintiff contends that the defendant did not exercise due care in three respects, any one of which would support the verdict. First, because the flagman did not warn the plaintiff seasonably to enable her to stop at a safe distance and avoid the risk of collision and of alarm to her horse. It is difficult, if not impossible, to lay down an abstract rule of law as to the exact time when, or the exact distance at which, travelers should be warned of an approaching train. It must be governed largely by the circumstances and surroundings...