Morgan v. Aroostook Valley R. Co.

• Decision Date: 09 September 1916
• Citation: 98 A. 628
• Parties: MORGAN v. AROOSTOOK VALLEY R. CO.
• Court: Maine Supreme Court

98 A. 628

MORGAN

v. AROOSTOOK VALLEY R. CO.

Supreme Judicial Court of Maine.

Sept. 9, 1916.

On Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by Arline Blanche Morgan against the Aroostook Valley Railroad Company. Verdict for plaintiff, and defendant moves for a new trial. Motion overruled.

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

Cyrus F. Small, of Caribou, and Powers & Guild, of Ft. Fairfield, for plaintiff. John B. Roberts, of Caribou, C. F. Daggett, of Presque Isle, and W. R. Pattangall, of Augusta, for defendant.

SAVAGE, C. J. The plaintiff, a child less than two years old, was run over and seriously injured by an electric motor engine on the defendant's road, and brings this action to recover damages, on the ground of alleged negligence. The verdict was for the plaintiff, and the case comes before this court on the defendant's motion for a new trial. The only grounds of nonliability argued are that the defendant's servants operating the motor were not negligent, and that the negligence of the child's parents should be imputed to her as contributory negligence.

1. The defendant's negligence. The evidence shows that the accident happened on Roosevelt avenue, in the village of Caribou, in front of the plaintiff's home. The following sketch will help to understand the situation.

The defendant's track crosses Washburn avenue and proceeds thence northeasterly by a nine-degree curve, on a fill from 4 to 6 feet high, to Roosevelt avenue, which it enters about 100 feet westerly from its junction with Washburn avenue. The plaintiff was in the street on the defendant's track. The motor, hauling three or four freight cars, was proceeding easterly to the station in Caribou, at a speed of from 10 to 15 miles an hour. Upon the motor was a motorman, a trolleyman, and the head brakeman. The evidence warranted the jury in believing that the motorman had a plain view of the spot where the accident occurred all the time after he passed Washburn avenue until he was so near that the front of the motor obstructed the view. The point where this clear view began was about 438 feet from the point of the accident. This distance was traversed in 30 seconds, if the train was going 10 miles an hour, as the defendant claims, or 20 seconds, if going 15 miles an hour, as the plaintiff claims. This shortness of time might lead a jury to believe that the motorman might at any time within that period have seen the plaintiff about or upon the track, if he had been looking; that is, the time was so short that the child could not have come from any place out of view in that time. Two of the men on the motor, the trolleyman and the head brakeman, saw her on the track. Each says that he noticed that the motorman was looking ahead, and therefore said nothing to him, until the danger was exceedingly imminent, when each says he "yelled" to the motorman. This aroused the motorman to a sense of the situation, and he then first saw the child. He says she was then 50 feet in front of him. It is conceded that from that time he did everything in his power to stop the train, but it was too late.

The motorman's excuse is that as he sat in the cab his view of the point of collision, the place where the child was, was obscured part of the way around the curve by the framework of the cab. There was a window in front of him, and one on his right hand out of which he could look. But he says that the framework between, that is the corner of the cab, prevented his seeing all that was in front of him at all times. This is, of course, true if he sat perfectly still, and moved his head neither to the right or the left. But the jury might have thought that the exercise of reasonable care under the circumstances required him to move his head so as to obtain a view of possible dangers before him, if he could not see them otherwise. At any rate, we think so. He was approaching a street, and was to cross it. The very situation made it a place of possible danger. The proximity of its junction with another street made it more so.

The defendant's brief states the law correctly when it says:

"It is the duty of the driver of an electric street railway car, consistent with due care, to keep a reasonable lookout ahead and to exercise a vigilance in his outlook according to the circumstances reasonably to be expected in the section through which the car is passing."

While the driver is holden only to the...