Libby v. Maine Cent. R. Co.

• Decision Date: 13 August 1892
• Citation: 26 A. 943,85 Me. 34
• Parties: LIBBY v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

26 A. 943

85 Me. 34

LIBBY

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Aug. 13, 1892.

Action for personal injuries by Augustus S. Libby against the Maine Central Railroad Company. There was a verdict for plaintiff, and defendant now moves to set the same aside. Conditional order.

The other facts fully appear in the following statement by FOSTER, J.:

This was an action on the case by a postal clerk and route agent to recover damages received by the negligence of the defendant. The second count in the writ alleges as follows:

"Also for that the defendant on the 10th day of June, A. D. 1889, was the owner of a railroad extending from the city of Portland, in the county of Cumberland, to the town of Skowhegan, in Somerset county, by the way of the city of Lewiston, in Androscoggin county, and the town of Oakland, in Kennebec county; and the defendant on said 10th day of June was running a train over said railroad route, carrying passengers and United States mail, which mail then and there required the attendance of postal clerks or route agents, and it was then and there the duty of the defendant to keep the roadbed and track of its said road, including all its culverts and water passages under said road, in a proper condition, so that all the defendant's trains passing over said roadbed would be safe to all persons riding or passing thereon. But said defendant, on said 10th day of June, 1889, did not properly discharge its duty in this respect, but carelessly and negligently allowed said railroad bed, truck, and culverts under said roadbed to be defective and unsafe, and particularly the culvert at Crowell's brook, so called, in said Oakland, so much so that said culvert at said Crowell's brook was then unfit to carry or vent the water naturally in said brook running under said roadbed, and said culvert had been in said defective condition for a long time prior thereto, whereby, and by means whereof, the water naturally flowing to said culvert did not pass under said culvert freely, but said water then and by the aforesaid carelessness of said defendant washed through the roadbed of said railroad at said culvert, causing a deep cut or washout through said roadbed, into which said train then and there plunged and fell.

"The plaintiff further declares that in said train, and a part of it, there was a postal car, in which was being carried the United States mail, and the plaintiff was then and there a postal clerk and route agent in the employment of the United States government, in charge of said mail, and in said postal car, and said postal car was then and there thrown into said cut or washout, and by means thereof the plaintiff then and there was crushed between the cars and engine of said train and five ribs of the plaintiff were broken, his right lung was punctured, causing great loss of blood, his skull was injured his nose broken, and he received numerous other serious wounds and injuries in other parts of his body, whereby he has suffered great pain and incurred great expense in attempting a cure of his injuries thus by him sustained."

The plea was the general issue.

The verdict was for the plaintiff for $9,558, which the defendant moves to set aside on general motion and because of excessive damages.

S. S. Brown, N. & H. B. Cleaves, and S. C. Perry, for plaintiff.

Webb, Johnson & Webb, for defendant.

FOSTER, J. (after stating the facts.) This is an action to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant corporation in the construction and maintenance of a culvert upon the line of its road at Crowell's brook, between North Belgrade and Oakland. Negligence is also alleged on the part of the defendant in the inspection of its road and roadbed in that vicinity; and that, in consequence of the negligence and carelessness of the defendant, on the 10th day of June, 1889, the culvert at the place named, together with a portion of the defendant's roadbed, was washed out, thereby causing a deep cut, ditch, or washout in the roadbed, into which the defendant's train, upon which the plaintiff, in the discharge of his duty as postal clerk, was thrown, and in consequence thereof the plaintiff received severe injuries.

A verdict was rendered for the plaintiff for the sum of $9,558, which the defendant moves to set aside.

To understand more accurately the legal position of the parties to this suit, the following summary of facts is gleaned from the evidence:

On the day in question the defendant's regular passenger and mail train left Portland for Skowhegan at 1:15 P.M., was due at North Belgrade at 3:59 P. M., and Oakland at 4:08 P. M. The distance between North Belgrade and Oakland is lour and one-tenth miles, and the culvert at Crowell's brook is about equally distant from each place.

Soon after the train left Portland it began to rain, and showers were frequent from Portland to North Belgrade, and when the train reached the latter place the rain had nearly ceased.

Between North Belgrade and Oakland the track runs along the border of Snow pond, from which the land rises gradually to the northwest for a distance of about one mile, forming a watershed of nearly four miles in length on the pond, and extending back on an average for about one mile. The land is mostly tillage and pasture. In this space of four miles between North Belgrade and Oakland there are five natural brooks draining this territory and emptying into Snow pond. Over these brooks the Androscoggin & Kennebec Railroad Company built culverts when it constructed its road in 1849. These Ave culverts have stood from the time they were constructed to the present time, except the one at.

Crowell's brook, which, on the day this accident occurred, was washed out, and 00 feet of the roadbed carried away, by an unprecedented rainfall in that immediate locality. The evidence shows that there appeared to be a conjunction of clouds going in opposite directions, emptying volumes of water upon this brook, causing it to overflow its banks, the quantity of water being greater than could have been discharged through three culverts of the size of this one, which had vented the water of this brook for more than 40 years. The water thus restrained formed a pond from 10 to 14 feet in depth, and instantly washed out the embankment and culvert, tearing down more or less of the wall and removing some of the covering stones. This occurred but a short time before the regular train was due, and there was no notice of the washout by any employe of the railroad or any other person. The section men were at work within 20 rods of the culvert at the time the shower commenced, and returned to the car house near the station at Oakland, where they remained until it had passed. There was nothing unusual in the character of the shower at Oakland where the men were, nor did the train men observe along the route any unusual signs indicating any more than an ordinary rainfall. The path of the rain torrent seemed to pass from the north west to southeast, down this brook and over the pond.

No serious controversy arises in reference to the general principles of law by which the liability of the railroad company is to be tested.

It is not denied that the defendant company owed the same degree of care to this plaintiff while riding in the postal car in charge of malls that it did to passengers upon the train. Blair v. Railway Co., 66 N. Y. 313; Baltimore & O. R. Co. v. State, 72 Md. 36, 18 Atl. Rep. 1107.

A carrier of passengers, however, is not, like a common carrier of goods, an insurer against everything but the act of God and public enemies. The law requires common carriers of passengers to do all that human care, vigilance, and foresight can, under the circumstances, considering the character and mode of conveyance, to prevent accident to passengers. To require anything less would be to leave the lives of persons in the hands of the reckless, and unprotected against the negligent and incautious. Tuller v. Talbot, 23 Ill. 357; Ingalls v. Bills, 9 Metc. (Mass.) 1, 15; Bowen v. Railroad Co., 18 N. Y. 408, 410. But, while public policy and safety require of common carriers of passengers that they be held to the utmost care which is consistent with the business in which they are engaged, they are not to be held as against every possible danger, nor are they to be held accountable for not taking every possible precaution against danger and accident. If they were required to do that, it would be to hold them insurers to the same extent as carriers of goods, and compel them to adopt a course of conduct inconsistent with the economy and speed which are essential to the dispatch of their business in serving the public Simmons v. Steamboat Co., 97 Masa. 361, 367; Railway Co. v. Thompson, 56 Ill. 138; Warren v. Railroad Co., 8 Allen, 227, 233. These authorities, and the decisions therein referred to, sustain the doctrine that railroads and steamboat companies which are common carriers of passengers are held to that degree of care which prudent men would make to guard against all dangers, from whatever source arising, which may naturally and according to the usual course of things be expected to occur. They are not insurers of the safety of their passengers further than can be required by the exercise of such a high degree of foresight and prudence in reference to possible dangers and in guarding against them as would be used by very cautious, prudent, and competent persons under similar circumstances. The rule, though somewhat differently expressed, is thus stated in Warren v. Railroad Co., 8 Allen, 227, 233: "But they are bound," say the court, "to exercise reasonable care, according to the nature of their contract; and, as their contract involves the safety of the lives and limbs of their passengers, the law requires the highest degree of care which is consistent with the nature of their undertaking." In our own...