Mitchell v. Bangor & A. R. Co.

• Decision Date: 27 October 1923
• Citation: 122 A. 415
• Parties: MITCHELL v. BANGOR & A. R. CO. (two cases.)
• Court: Maine Supreme Court

122 A. 415

MITCHELL

v. BANGOR & A. R. CO. (two cases.)

Supreme Judicial Court of Maine.

Oct. 27, 1923.

On Motion from Superior Court, Penobscot County, at Law.

Action by James W. Mitchell and wife against the Bangor & Aroostook Railroad.Verdict for plaintiffs, and defendant moves for new trial.Motion overruled.

Argued before CORNISH. C. J. and SPFAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Fred W. Knowlton, of Old Town, and Fellows & Fellows, of Bangor, for plaintiffs.

Frank P. Ayer, Henry J. Hart, and George E. Thompson, all of Bangor, for defendant.

CORNISH, C. J.These two actions, one brought by the husband and the other by the wife, arose from an accident that occurred on March 6, 1922, in the town of Alton, caused by the fright of Mr. Mitchell's horse at a hand or push car, removed by employees of the defendant from the railroad tracks, and placed and allowed to remain near a railroad crossing, and within the limits of the public highway.The section men had been putting new plank in the crossing.They had come there in their gasoline car and hauled the plank in the push car.While there they received orders to proceed to another place on the railroad and make repairs and, to use the words of the section foreman:

"We was there all the rest of the day, and we never thought of the push car afterwards, and so it was left there over night."

This accident happened about 4 o'clock in the afternoon.

Mrs. Mitchell was riding on some boards placed on a truck wagon, leaning against a bag of grain, and facing toward the left or west.Mr. Mitchell had also been riding on the boards, but had stopped to water the horse at a point a short distance southerly from the crossing, and then had walked beside the team on the easterly side toward the crossing, holding the reins in his hands, as he testified.Just as or after the horse passed over the crossing he became frightened at this push car, jumped quickly to the left, and threw Mrs. Mitchell off the team, causing serious injuries.

The jury rendered a verdict in favor of the plaintiff in each action, and a general motion by the defendant brings the cases before the law court.

1. Negligence.

The principle of law upon which the plaintiffs' right of action must rest, if at all, cannot be in controversy.It is this: One may be held legally responsible for injuries resulting from negligently depositing within the limits of a highway objects reasonably calculated or likely to frighten horses ordinarily gentle and well broken, traveling along the highway.This rule applies to railroads as well as to other persons or corporations.At a highway crossing the railroad company has one right superior to that of the traveling public, and that is the right of passage.As to other rights, however, the railroad cannot claim superiority, and it comes under the general rule above stated as to depositing objects off the track and within the limits of the highway.

In Lynn v. Hooper, 93 Me. 46, 44 Atl. 127, 47 L. R. A. 752, this rule of law is thoroughly discussed, and many illustrations of its application in decided cases are cited.To these may be added objects that under certain circumstances have been held to be likely to cause fright, and especially pertinent in the case at bar—a push car, loaded with tools, standing on the track at a crossing (Sherman S. & S. Ry. Co. v. Bridges, 16 Tex. Civ. App. 64, 40 S. W. 536); a push car removed from track and placed within the limits of the highway (Ohio & M. Ry. Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64); same situation (A. T. & S. P. R. R. Co. v. Morrow, 4 Kan. App. 199, 45 Pac. 956).

The problem therefore resolves itself into one of fact.Conditions vary.Were the appearance and location of this car such as to make it a naturally fright-producing object to a gentle and well-broken...