Milton v. Bangor Ry. & Elec. Co.

• Decision Date: 26 November 1907
• Citation: 68 A. 826,103 Me. 218
• Parties: MILTON v. BANGOR RY. & ELECTRIC CO.
• Court: Maine Supreme Court

68 A. 826

103 Me. 218

MILTON

v. BANGOR RY. & ELECTRIC CO.

Supreme Judicial Court of Maine.

Nov. 26, 1907.

Report from Supreme Judicial Court, Penobscot County.

Action by Edward J. Milton against the Bangor Railway & Electric Company. Case reported. Judgment for plaintiff.

Action on the case to recover damages for injuries to the plaintiff's horse and harness caused by an alleged defect in a crossing over the defendant's tracks in the city of Old Town. After the evidence was taken out, it was agreed to report the case to the law court for decision in accordance with the stipulations hereinafter stated.

The report, among other things, alleges as follows:

"Plaintiff offered evidence to show a defective crossing over said defendant's tracks at the junction of Elm street and Stillwater avenue, in the city of Old Town; that said defect was due to the defendant's negligence, and that his own negligence did not contribute to his injury. It was admitted by defendant that it owned and operated the line of electric road between Bangor and said Old Town at the point where and at the time when the plaintiff suffered injury to his horse and harness. Plaintiff admitted that the Bangor Railway & Electric Company was the successor of Bangor, Orono & Old Town Railway Company.

"Defendant moved for a nonsuit, on the ground that the plaintiff had failed to prove that the defendant had 24 hours' actual notice of the defect causing plaintiff's injury, or that within 14 days thereafter he had given notice thereof to the directors of the defendant corporation.

"Defendant claimed this right of notice by virtue of chapter 116, p. 198, Priv. & Sp. Acts 1891, entitled 'An act to incorporate the Old Town, Orono & Veazie Railway Company'; section 3 of said act providing, in part, as follows: '* * * Said corporation shall be liable for any loss or damage which any person may sustain by reason of any carelessness, neglect or misconduct of its agents or servants, or by reason of any defect in so much of said streets or roads as is occupied by said railroad if such defect arises from neglect or misconduct of the corporation, its agents or servants; and in actions brought against the company to recover damages by reason of such defects, the plaintiff shall have the rights and be subject to the burdens of proof and limitations and conditions provided by the general statutes applicable to suits for such causes against towns as now existing, the directors of said company standing in this respect in place of town officers.'

"It was admitted that the existence of this right in the defendant depended upon the construction of chapter 495, p. 809, Priv. & Sp. Acts 1889, entitled 'An act to incorporate the Old Town Street Railway Company': chapter 116, p. 198, Priv. & Sp. Acts 1891, before recited; section 27 of chapter 53 of the Revised Statutes; chapter 559, p. 863, Priv. & Sp. Acts 1893, entitled 'An act to change the name and amend the charter of the Old Town, Orono & Veazie Railroad Company'; chapter 111, p. 136, Priv. & Sp. Acts 1895, entitled 'An act to amend the charter of the Bangor, Orono & Old Town Railway Company'; and chapter 46, p. 52, Priv. & Sp. Acts 1905, entitled 'An act to confirm the organization of the Old Town Electric Company, to change its name to Bangor Railway and Electric Company, and to authorize it to acquire the properties and franchises of the Public Works Company, the Bangor, Orono and Old Town Railway Company and the Bangor, Hampden & Winterport Railway Company, and to confer certain powers upon said Bangor Railway & Electric Company.' (Here follows various excerpts from the acts and statutes mentioned in the preceding paragraph, and also an admission in relation to a certain lease between the Old Town, Orono & Veazie Railway Company and the Old Town Street Railway Company for the term of 999 years.)

"It was admitted that the Bangor Railway & Electric Company accepted the franchise conferred by this act (Priv. & Sp. Laws 1905, p. 52, c. 46); that special meetings of the stockholders and directors of the Bangor, Orono & Old Town Railway Company were duly called and held on the 7th day of April, 1905, and that at such meetings it was unanimously voted to merge the Bangor, Orono & Old Town Railway Company into the Bangor Railway & Electric Company; and that for this purpose by a deed of indenture dated April 7, 1905, duly executed and delivered, the Bangor, Orono & Old Town Railway Company did sell, and the Bangor Railway & Electric Company did purchase, all the property of said Bangor, Orono & Old Town Railway Company, including 'rights, privileges, immunities and franchises.'

"It was agreed that the case should be reported to the law court for its decision. If the court shall hold that under the various legislative enactments herein set forth defendant's liability for plaintiff's injuries, caused by defect in a public way, and due to its negligence, is conditioned upon 24 hours' actual notice of said defect prior to said injuries, and upon notice given by the plaintiff to the directors of the defendant corporation within 14 days after said injuries, judgment to be for the defendant; otherwise for the plaintiff in the sum of $50."

The case sufficiently appears in the opinion.

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

Waterhouse & Crawford, for plaintiff. E. C. Ryder, for defendant.

EMERY, C. J. The Old Town, Orono & Veazie Railroad Company, incorporated in 1891 by chapter 116, p. 198, Special Laws 1891, received authority to occupy portions of the streets of Old Town with its railroad tracks, etc., but coupled with the duty of keeping and maintaining in repair all such portions and of making all other repairs of such streets which should be rendered necessary by the occupation of them by its railroad. Sections 1 and 2 of the charter. Under this charter that company constructed its tracks and operated its railroad through various of the streets of Old Town. Its property, franchise, and duty subsequently passed by various conveyances and legislative acts to the defendant company, which since 1905 has maintained the tracks and operated the railroad through the same and other streets of Old Town.

The plaintiff, while...