Marden v. Portsmouth, K. & T. St. Ry.

• Decision Date: 02 March 1905
• Parties: MARDEN v. PORTSMOUTH, K. & T. ST. RY.
• Court: Maine Supreme Court

60 A. 530

100 Me. 41

MARDEN

v. PORTSMOUTH, K. & T. ST. RY.

Supreme Judicial Court of Maine.

March 2, 1905.

Action by George H. Harden against the Portsmouth Kittery & York Street Railway. Verdict for plaintiff. Motion for new trial overruled, and judgment on the verdict

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

H. H. Burbank and John G. Smith, for plaintiff. J. C. Stewart, Emery & Sims, and O. D. Baker, for defendant.

SPEAR, J. This is an action on the case for negligence, resulting from a collision between the plaintiff's cart and the defendant's electric car. The case shows that the plaintiff on the 15th day of June, 1901, was driving a covered butcher's cart along a public street in the town of Kittery in an easterly direction, parallel with the defendant's road, about three feet northerly thereof; the track being on the southerly side of the road. The highway and the track descend quite sharply towards the east, the grade being about 6 feet in 100. At the bottom of the grade, a cross-street called "Williams Avenue" runs substantially at right angles and southerly from the highway on which the plaintiff was driving. When the plaintiff reached the mouth of Williams avenue he attempted to turn his team into it, thereby squarely crossing the defendant's rails. While crossing the track the front part of the off hind wheel of the plaintiff's cart was struck by the defendant's car, and the injuries were produced of which the plaintiff complains. After a long trial, involving more than 250 pages of testimony, the jury returned a verdict for the plaintiff of $1,103.73. The case comes up on motion to set this verdict aside, as against the law and the evidence. The real issue to be considered is whether the defendant was guilty of negligence with respect to the speed with which it was running its car at the time the accident occurred, and whether the plaintiff was guilty of contributory negligence. The evidence upon the one side and the other upon the point of speed is conflicting; the plaintiff and some of his witnesses contending that the car was running from 15 to 20 miles an hour down the grade towards the crossing, while those of the defendant assert the car was moving at a rate of only 4 or 5 miles an hour. There was also testimony on the part of the plaintiff bearing upon the question of speed, tending to show that the cart and horse were thrown bodily in the air when the car struck them—the cart some 40 feet, and the horse half that distance—and that the car itself run from 150 to 200 feet bey6nd the center of the crossing before it could be stopped, although the motorman claims that he did all in his power to check the car in the quickest possible manner after he discovered that the plaintiff was about to cross the track in front of it. In finding the defendant guilty, the jury must have come to the conclusion that it was running its car at the time of the collision at an unsafe and unreasonable rate of speed.

But the defendant says, admitting its negligence as found by the Jury, it is not guilty, because the plaintiff's own testimony, allow it to be true, clearly discloses the fact that by his own neligent acts he contributed to the accident which caused his injuries. Whether the plaintiff in his connection with the accident, was guilty of contributory negligence, assuming the guilt of the defendant, may depend in a large degree upon the duty which the defendant, under the particular circumstances in this case, owed to the plaintiff. This consideration involves a question with respect to the relative rights and duties of electric cars and vehicles while concurrently approaching and passing over public street crossings. The law upon this subject seems to be well settled in many states. While the contention has been made that a person approaching an electric road with the intention of crossing the track should observe that same degree of watchfulness and care as when attempting to cross a steam road, it is readily obvious that the cases are entirely dissimilar. The steam road is invariably possessed of a private roadbed, protected by law, and vested with the right to punish as a trespasser any person who may invade it3 property outside of that part of its premises made public for the prosecution of its business. It is also permitted by law to propel its trains at a tremendous rate of speed, so that it is impracticable, if not impossible, to stop them quickly or within a short distance. The law recognizes these facts, and, not only for the protection of the individual who may undertake to cross a steam railroad track, but for the safety of the many who may be riding in the public coaches, requires the individual, when he approaches the passageway of such an engine of destruction, within a proper distance of the track, to look and listen, not only with his eyes and ears, but with his mind, to discover whether a train is approaching. The law makes it imperative for travelers to do this, and a failure to comply with this law presumes them to be guilty of contributory negligence, if they are injured by a collision with a passing train. This is undoubtedly a wise and judicious law in its application to steam roads, but it should not be fully applied to the use of electric and other street railroads.

An electric road is installed and operated upon a principle entirely different from that of the steam road. Our court has said in Briggs v. Horse R. Co., 79 Me. 367, 10 Atl. 48, 1 Am. St. Rep. 316, that "the laying down of rails in the street, and running the street cars over them for the accomodation of persons desiring to travel that street, is only a later mode of using the land as a way—using it for the valuable purpose for which it was originally taken. It may be a change in the mode, but it is not a change in the use. The land is still used for a highway." This rule of law applies equally whether the motor for propelling the car is a horse, steam, or electricity. It is apparent, therefore that the electric cars, which are now becoming of very common use, not only in our cities, but in our villages and country towns, are operated for the most part within the limits of the legally located highways, as said in Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3, 35 N. E. 95, 39 Am. St. Rep. 446, where "the use of the street for electric cars and by the general public is concurrent, and the defendant is bound, in using the street, to have reference to its reasonable use by others." Unlike steam cars, the electric car runs, or may be run at times, through streets crowded with people and vehicles, and therefore, instead of being vested with the right to run at a rapid rate of speed, they are required to make a reasonable use of the streets, consistent with the rights of other persons and vehicles who may occupy the streets in conjunction with them. Upon this point the court in Driscoll v. West End St. Ry., 159 Mass. 145, 34 N. E. 172, holds that "the drivers and conductors of street railway cars, whatever the motive power, have in general the same rights and duties with reference to other vehicles crossing their course that the drivers of omnibusses have, for example, or that the driver of any other vehicle has. O'Neil v. Dry Dock, East Broadway & Battery Ry., 129 N. Y. 125, 29 N. E. 84, 26 Am. St. Rep. 512. In Commonwealth v. Temple, 14 Gray, 69, 75, it is said: "Where the entire public, each according to his own exigencies, has a right to the use of the highway, in the absence of any special regulation by law, the right of each is equal. Each may use it to his own best advantage, but with a just regard to the like right of others." See, also, Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067, 22 L. R. A. 374. But a reasonable use must be measured by the relative facility with which ears and other kinds of vehicles are able to move about, with respect to one another, in the streets. It must be recognized that cars are confined to a track, and are unable to turn to the right or to the left; that they are permitted to occupy the streets for the purpose of facilitating travel; and that teams and travelers, as far as practicable, must keep out of their way, and not impede their progress more than is absolutely necessary. It is perfectly obvious that a team can move with ease, while a car cannot, but is confined to one course; hence a reasonable use of the streets, having reference to the relative facility with which the locomotion of teams and cars can be controlled, necessarily gives the car between street crossings certain privileges over other vehicles. These superior privileges are well stated in O'Neil v. Railroad, 129 N. Y. 130, 29 N. E. 85, 26 Am. St. Rep. 512, as follows: "As the cars must run upon the tracks, and cannot turn out for vehicles drawn by horses, they must have the preference; and such vehicles must, as they can, in a reasonable manner, keep off from the railroad tracks, so as not to prevent the free and unobstructed passage of the cars. In no other way can street railroads be operated. As to such vehicles, the railways have a paramount right, to be exercised in a reasonable and prudent manner."

But in the end, what is a reasonable use, is a question of fact, depending upon the circumstances of each particular case, having reference to the manner in which street railroads are obliged to be operated, and the purpose for which they are designed. Hall v. Ogden City St. Ry. Co. (Utah) 44 Pac. 1046, 57 Am. St. Rep. 729; Driscoll v, West End St. Ry., 159 Mass. 142, 34 N. E. 171.

Yet the defendant seems to assume in its brief that the same rule with respect to approaching a public street crossing traversed by electric cars applies to electric as to steam roads, and asserts that on this point this case falls clearly within the decision of Blumenthal v. Railroad, 97 Me. 255, 54 Atl. 747, and Day v. Railroad, 97 Me. 528, 55 Atl. 420. But the...