McCarthy v. Bangor & A. R. Co.

• Decision Date: 07 May 1914
• Citation: 90 A. 490,112 Me. 1
• Parties: MCCARTHY v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

90 A. 490

112 Me. 1

MCCARTHY

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

May 7, 1914.

Action by William McCarthy against the Bangor & Aroostook Railroad Company. Verdict for plaintiff, and defendant moves for new trial. Motion sustained.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

John B. Pelletier, of Van Buren, and F. W. Halliday, of Newport, for plaintiff. P. C. Keegan, of Van Buren, Powers & Archibald, of Houlton, and Stearns & Stearns, of Bangor, for defendant.

SAVAGE, C. J. The plaintiff, a boy of 14 years, while driving a milk cart in the highway across the defendant's railroad, was truck by the locomotive of a train and severely injured. In this action, in which he seeks to recover the damages sustained by him on account of the injuries, he counts on the defendant's negligence in the following particulars only: That the train was "driven negligently and carelessly by said defendant"; that no whistle was blown before reaching the crossing; that the defendant was unmindful of its duties to the plaintiff; and that the defendant "was negligent, careless, and unmindful of its duty, in that it did not keep a careful lookout for such danger, that it did not use the care of a reasonable and prudent man under such circumstances." The verdict was for the plaintiff, and the case comes up on the defendant's motion for a new trial.

In argument the plaintiff contends that the defendant's servants upon the locomotive were negligent in not keeping a careful lookout when approaching the crossing, which is claimed to have been a blind and dangerous one, and that they did not sound the whistle and ring the bell while approaching the crossing, as required by statute and by common prudence. Seven witnesses testified for the plaintiff, in effect, that the whistle was not blown, and that the bell was not rung; four for the defendant to the contrary. Not to be on the lookout, and not to blow the whistle and ring the bell in approaching a blind crossing, is certainly negligence.

But it is unnecessary to analyze the testimony respecting the defendant's negligence. Even if we thought, as we do not, that the jury were justified in finding that the defendant's servants were negligent, and that their negligence was a cause of the collision, we are forced by the evidence to the conclusion that the plaintiff was guilty of contributory negligence, and that he cannot recover damages in any event.

In the first place, it is proper to observe that the plaintiff, though a boy, was an intelligent one, and his own testimony shows beyond question that he perfectly appreciated the danger, such as it was, of being run over at the crossing. He was engaged in driving a milk cart upon a milk route, and had been so engaged for nine months prior to the accident. And each day he had driven over this crossing twice. This case and indeed his own evidence show that he was perfectly familiar with all the surroundings of the crossing, and with the consequent dangers. He knew when he approached the crossing that it was about train time. He says he stopped his team twice before reaching the crossing to look and listen for the train. He says he saw nothing and heard nothing. One stopping place was about 150 feet from the track, and the other was at a point about 50 feet from the track. The railroad for more than half a mile in the direction from which the train was coming was perfectly straight. But the plaintiff says he could not see the approaching train on account of trees and bushes growing on the right of way, and on account of a bank left in grading at the side of the highway. At this point the railroad passes through a cut, and the highway is graded down an incline to cross at grade. By reason of these obstructions to view, the plaintiff says he could not, and that he did not, see the train until he actually was on the crossing, and that then the train was not more than 50 feet away. And another witness testified that a train could not be seen until one was on the crossing. The plaintiff contends that, not only were there standing trees standing on the right of way, but that some of them leaned over towards the track so low as to obstruct vision up and down the track. The defendant's right of way at this point was 300 feet wide.

The defendant contends that the plaintiff had an unobstructed view of the railroad track when he was 50 feet from the track. There is much dispute about this. Assuming the crossing to be as blind and dangerous as the plaintiff describes it, there was all the greater need of watchfulness on the plaintiff's part. The more dangerous the crossing, the more need of care. At ordinary crossings a burden is put upon the traveler to be observant, to look and listen, and to stop, if need be. Much more at a blind crossing. The plaintiff, if his testimony is true, appreciated the necessity of watchfulness, even of stopping, for he says he stopped twice, with an interval of 100 or 125 feet.

Now, if the plaintiff stopped last at a distance of 20 or even 50 feet from the track, and actually listened, it is, in the opinion of the court, incredible that he should not have heard the noise and roar of the onrushing train—a train coming, as the plaintiff argues, at the speed of CO miles an hour, but more probably at a speed of 35 miles an hour. The train was then only a few hundred feet away. The track was straight. No climatic conditions are shown to have interfered with hearing. From the facts so far stated, it seems to us impossible that he should not have heard, if he stopped still and listened. And as he approached the track the train came nearer, and inevitably the noise was louder. But there is an additional fact. Following behind the plaintiff's milk cart, before the crossing was reached, was a two-horse team hauling a jigger load of empty potato barrels. The driver was a boy. That boy left his own team trailing unguided behind and got into the milk cart with the plaintiff. Both boys testify that, when the milk team was stopped the last time before reaching the crossing, the two-horse team passed by them. They both testify that while riding together they were talking. Whether the boys were intent upon their conversation so that they did not hear the coming train, or whether there was a rattle of empty potato barrels so that they could not hear, the case does not disclose. These are suggestions merely of what may account for their not hearing. But true it is that they passed on, both of them apparently oblivious of the danger, until they got onto the crossing. Under the existing conditions, if the plaintiff did not listen with ear and mind both, he was negligent. If he listened, but was prevented from hearing the train by the rattling of the barrels or any...