McTaggart v. Maine Cent. R. Co.

• Decision Date: 19 May 1905
• Citation: 60 A. 1027,100 Me. 223
• Parties: McTAGGART v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

60 A. 1027

100 Me. 223

McTAGGART

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

May 19, 1905.

Report from Supreme Judicial Court, Waldo County.

Action by Dilla McTaggart against the Maine Central Railroad Company. After all the evidence had been taken out, it was agreed that the case should be reported with the following stipulations: "The case is to be heard as if a verdict had been rendered for the plaintiff, and a motion had been filed by the defendant for a new trial. If upon the admissible evidence the action is sustainable, judgment is to be rendered for the plaintiff for $5,000 damages; otherwise judgment for the defendant. The defendant is to carry the case forward." Judgment for defendant.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

R. F. Dunton and John R. Dunton, for plaintiff. C. F. Woodard, for defendant.

SAVAGE, J. Case for wrongful injuries causing immediate death of John McTaggart, plaintiff's intestate. This case is now before us on report, with a stipulation that it is to be heard as if a verdict had been rendered for the plaintiff, and a motion had been filed by the defendant for a new trial. All conclusions and inferences of fact, therefore, which a jury would have been warranted by the evidence in finding for the plaintiff, must be found by us for the plaintiff. Substantially all the evidence was put in by the plaintiff, and there is little dispute, so far as it goes.

It appears that, for some time prior to the injury complained of, a construction crew of the defendant had been repairing the abutments of a bridge on the Belfast Branch, between Unity and Burnham Junction. Not far from the northerly end of the bridge, and towards Burnham, a platform had been erected, at about the level of the rails. Upon this platform stood a donkey engine and boiler, the latter being about 4 feet from the rails. Northerly of the engine and boiler was a coal bin. Southerly, towards the bridge, and about 25 feet distant from the engine, was a derrick, which was operated by the donkey engine. At this point the railroad runs upon a narrow and somewhat steep embankment, with water on both sides. On August 21, 1903, a 2-inch iron steam pipe was connected with the top of the boiler, and extended towards the railroad track about 3 feet, then down perpendicularly to within 18 inches of the level of the rails, then turned towards the rail 3 inches, then down to the ground and under the rails to a pump below.

McTaggart, the deceased, was a railroad man of long experience. He had been section foreman, foreman of construction crew, and brakeman, and for 11 years before his death had been baggage master on the Belfast Branch. He made two round trips a day between Belfast and Burnham, and had therefore passed the engine and boiler above spoken of four times daily since they had been placed in position. On several occasions while his train waited at Burnham he had gone from Burnham to the bridge in question as brakeman on a construction train, and when at the bridge had been on the platform where the engine and boiler were; remaining about there from half to three-quarters of an hour. One of these occasions, at least, was after August 21st, when the steam pipe was connected with the boiler.

On the morning of September 4, 1803, one Whitehouse, the station agent and telegraph operator at Unity, handed McTaggart, in the baggage car of the train, a telegram addressed to one of the construction crew at the bridge, and asked him to throw it off as the train passed the bridge. Whitehouse had tied the telegram to a stick about a foot long. He told McTaggart the contents of the message, which was that the wife of the addressee was sick. He also told him that they wanted to get the message to the man, so that he could go home to his wife as soon as possible. As the train approached the bridge it slowed down somewhat, and started up again after it crossed. While the baggage car was crossing the bridge, the engineer of the donkey engine, standing by the engine, saw McTaggart standing on one of the steps at the rear end of the car, waving the message with one hand, and holding onto the car rail with the other. The witness could not tell which step he stood upon. When he got opposite the derrick, about 25 feet southerly from the boiler, he threw out the message. He was then standing "about square on the steps or platform." What happened afterwards was not seen by any human eye.

As the train passed, the engineer, unconscious that McTaggart had been struck by any object, picked up the message and started to deliver it. But immediately it was discovered that McTaggart was lying dead in the coal bin, 27 feet northerly from the boiler. His face and head were bruised in several places. The most noticeable bruise was a long, straight one just back of the right ear. From these circumstances, the plaintiff contends that a jury would have been warranted in finding that as McTaggart passed the boiler his head hit the steam pipe, causing the long, straight bruise, and he was thereby knocked off the steps of the car. The height of the steam pipe and its distance from the baggage car as it passed is left uncertain, but we think a jury might properly have found that it extended 2 or 3 feet above the floor of the car, and was about 6 inches from the outside surface of the car. The outside of the lowest step was 2 inches inside of the outside of the car. That step was 2 feet and 10 inches lower than the floor of the car. If the plaintiff's theory is right, the position of the bruise referred to shows that after McTaggart threw out the message he leaned forward, bringing his head 6 or 8 inches outside the car, and was looking backward when he was hit by the steam pipe.

Various defenses are strongly urged. We shall not have occasion to examine them all. In the first place, assuming that he was hit by the steam pipe, it is contended that at the time of his injury McTaggart was not engaged in the performance of any service which he owed the defendant by virtue of his employment, that it was no part of his duty as baggage master to deliver telegrams along the route, and therefore that it was not the duty of the defendant to anticipate that he would do so, and so to arrange its boiler and steam pipe that he might do so safely. This question must be considered in the light of defendant's duty to the deceased at the time. It was its duty to exercise reasonable care so to place its boiler and pipe as to make it reasonably safe for him to perform any service which it had any reason to expect that he might properly do at that place by Virtue of his employment. Any omission to exercise such care would be negligence as to him. It matters not whether the pipe was so placed as to be safe or unsafe as to other servants in the performance of their respective duties. It was...