Moulton v. Sanford & C. P. Ry. Co.

• Decision Date: 27 February 1905
• Citation: 59 A. 1023,99 Me. 508
• Parties: MOULTON v. SANFORD & C. P. RY. CO.
• Court: Maine Supreme Court

59 A. 1023

99 Me. 508

MOULTON

v. SANFORD & C. P. RY. CO.

Supreme Judicial Court of Maine.

Feb. 27, 1905.

(Official.)

Action by Andrew J. Moulton against the Sanford & Cape Porpoise Railway Company. Verdict for plaintiff. Motion for a new trial. Sustained.

Argued before EMERY, WHITEHOUSE, STROUT, PEABODY, SPEAR, and SAVAGE, JJ.

E. P. Spinney, for plaintiff.

Allen & Abbott, for defendant.

SPEAR, J. This is an action on the case to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant in running its electric car at an unreasonable rate of speed in approaching, in the opposite direction, the plaintiff, with his team, thereby frightening the plaintiff's horse, and causing the injuries of which he complains.

No rule of law is better settled in this state than the one which declares that if a person, by his own negligent acts, contributes to the accident in which he is injured, he cannot recover for the injuries so received. We think the plaintiff's case comes clearly within this rule.

Admitting the negligence of the defendant —which we doubt—the evidence shows that the negligence of the plaintiff clearly contributed to the accident causing his injuries. The verdict of the jury is, of course, a very strong barrier to overcome. The general rule is that, when the testimony is conflicting, the verdict must stand. But a conflict of testimony cannot be said to arise simply because one witness testifies contrary to another. If it was so held, hardly a verdict could ever be set aside. It would be difficult to imagine a case that had been dignified with the verdict of a jury that would not present some conflict of testimony. Besides, if such were the rule, it would only be necessary to secure the evidence of a witness, however false, to hold a verdict once obtained.

The rule cannot be so construed. It means that there must be substantial evidence in support of the verdict—evidence that is reasonable and coherent, and so consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against the opposing evidence. When it is overwhelmed by the opposing evidence, a verdict cannot stand. Roberts v. Boston & Maine R. R., 83 Me. 208, 22 Atl. 174.

If the verdict is regarded as clearly and manifestly against the evidence, it will be set aside. Gilmore v. Bradford, 82 Me. 547, 20 Atl. 92; Cosgrove v. Kennebec Light & Heat Co., 98 Me. 473, 57 Atl. 841. When the evidence, viewed in the light of the circumstances surrounding the whole transaction, so strongly preponderates against the plaintiff upon points vital to the result as to amount to a moral certainty that the jury erred in the conclusion reached by them, the verdict should be set aside. Smith v. Ins. Co., 85 Me. 348, 27 Atl. 191.

In Cawley v. La Crosse R. It, 101 Wis. 150, 77 N. W. 180, the court say: "If there was anything in plaintiff's evidence, standing alone, tending to show that she had passed two or three teams before—and we say there is not—the rule of law, often announced, that the testimony of an interested party contrary to the facts otherwise conclusively established in the case and all reasonable inference from the situation disclosed by the evidence, does not raise a conflict requiring a finding by the jury." Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Badger v. Janesville Cotton Mills, 95 Wis. 599, 70 N. W. 687.

The plaintiff's contention in this case is that on the 16th day of March, 1903, he was driving along a public street in Kennebunk village on his way from the Boston & Maine freight depot towards his home, with a barrel of coal in his wagon; that his horse had always been perfectly kind around the electric cars; that when he had arrived at a point opposite the house of Mr. James Stone, and crossed the railroad track to the northerly side of the road, the defendant's electric car, which is alleged to have caused the accident, was coming from Kennebunkport, and was just below and beyond the curve at the foot of the hill; that the plaintiff and the defendant's car continued to approach each other until 400 feet apart, when the car swung around the curve at the foot of the hill, which gave the car the appearance, at this point, of coming head on to the plaintiff's team.

The plaintiff at this time was more than 130 yards distant from the car; yet he says his horse, hitherto safe and used to the cars, displayed great fear, pranced and stood up, and that he waved his hand to the conductor to stop, and that the conductor paid no attention that he tried to control his horse, and did until the car was passing him, when his horse swung from the road, and in so doing the hub of the nigh hind wheel struck a trolley pole, swinging the horse northerly across the ditch and up the bank, where the carriage struck an elm tree, throwing the plaintiff out, and severely injuring him. The defendant controverts the plaintiff's position on every point, and affirmatively asserts (1) that the plaintiff's horse was not well broken and kind, but uncertain and vicious; (2) that the plaintiff, when approaching the car was negligent in his manner of driving; (3) that his carriage did not strike an electric pole, claimed to have been negligently set too near the traveled part of the way; (4) that the car was moving up a 4 per cent. grade at a slow rate of four or five miles an hour. The weight of evidence was with the defendant upon all of these propositions, and overwhelmingly so in one or more involving the defendant's own negligence as a contributory, if not the proximate, cause of the accident.

The plaintiff was a blacksmith, and had in the hind part of his "democrat" wagon, as it is called, a barrel of coal. When he crossed the track at the top of the hill, he says he was driving his horse with his left hand, and steadying the barrel of coal with his right. This testimony of the plaintiff himself clearly indicated that, while driving along the road entirely unmolested, the barrel was unsteady, and required holding. It is not denied by the plaintiff, and is shown by all the witnesses upon this point, that the barrel remained in the wagon during all the escapades of the horse, including his crossing the ditch and climbing a steep bank, so that the coal was "dumped alongside of the tree on the bank," as one witness testifies and others corroborate.

In the light of...