Norton v. Maine Cent. R. Co.

• Decision Date: 30 April 1917
• Citation: 100 A. 598,116 Me. 147
• Parties: NORTON v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

100 A. 598

116 Me. 147

NORTON

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

April 30, 1917.

Exceptions and Motion from Supreme Judicial Court, Cumberland County, at Law.

Action by Patrick J. Norton against the Maine Central Railroad Company. Verdict for the plaintiff, and defendant excepts and moves for a new trial. Exceptions and motion overruled.

Argued before SAVAGE, C. J., and KING, BIRD, and HANSON, JJ.

William H. Gulliver and Elton H. Thompson, both of Portland, for plaintiff. Symonds, Snow, Cook & Hutchinson, of Portland, for defendant.

BIRD, J. The plaintiff brings this action on the case under the provisions of the Federal Employers' Liability Act (35 U. S. Stats. at Large, c. 149, p. 65 and c. 143, 36 Stat. p. 291), to recover damages for injuries sustained by him through the alleged fault or negligence of defendant corporation. The case was submitted to a jury upon defendant's plea of the general issue. At the close of the testimony, the defendant offering none, the latter moved the direction of a verdict for defendant, and, the motion being refused by the presiding justice, the defendant had exceptions to his ruling and refusal. The verdict of the jury was for the plaintiff in the sum of $15,000. The defendant also filed the usual motion for new trial, which is now urged only upon the ground of excessive damages.

The injury for which plaintiff seeks the recovery of damages was sustained at the easterly end of Carmel bridge, a few miles westerly of Bangor.

The statement of the first count of the plaintiff's declaration as to the manner in which the injury of which he complains was received is as follows:

"And the said plaintiff acting upon the orders and directions of the said engineer in charge of the said locomotive, as aforesaid, descended from said cab and onto the roadbed between the said west-bound track and the said east-bound track and then and there walked along between said tracks in the direction in which said train was then proceeding, and commenced the work of bleeding and releasing the air brakes on certain freight cars hereinbefore mentioned; that at said time the said train was in motion. and was proceeding westerly towards Portland at a rate of speed of five miles per hour; that at said time the plaintiff had been employed as a brakeman for a short period of time, and had not been informed and was not aware of any dangers or obstructions in and about said portion of the defendant's track and roadbed, and was not then and there informed by the engineer in charge of said locomotive, or any other person, of the existence of any dangers of obstruction at the place aforesaid; that the plaintiff while so walking along the said roadbed, and while in the exercise of due care, suddenly and without warning walked into and against a certain obstruction, to wit, a certain truss or girder or beam standing between the said west-bound and the said east-bound tracks and close to the said tracks and the freight cars which were then and there passing over said railroad; that when the plaintiff then and there came in contact with said obstruction, to wit, with said truss, girder, or beam, he was caused to fall under the moving cars on said railroad."

Lack of knowledge of the plaintiff and failure of defendant to warn or caution are variously set forth in other counts.

The plaintiff at the time, October 4, 1913, he received the injury was a brakeman in the employment of the defendant. He was about 21 1/2 years old. Before he was appointed brakeman, he had served the defendant 3 years as freight handler and about a year and six months as freight checker. He had received the regular training of brakeman, and his employment as such was accepted by himself and approved by the defendant. Plaintiff's training began on the 1st of September, 1913, and was given him upon a division of the railroad of defendant other than that on which he received his injury. He began to run as brakeman on the latter division on the 22d day of September following, and had been over the route seven times, and on three of the runs passed Carmel bridge in daylight. On the other divisions of the road to which plaintiff was assigned, either for instruction or service, prior to his assignment to the Bangor route, there were no bridges constructed with a central girder, as was the Carmel bridge. Although he had bled the brakes in the daytime, during his service upon other divisions of defendant's railroad, he had never performed this duty upon the division where he was injured.

On the night in question the train was upon a long upgrade, the brakes were creeping; that is, there was too much air pressure upon them. There was danger that the locomotive would stop and, if this took place, the train could not start again except in sections. The engineer, besides giving the usual attention to his engine, was engaged in working an appliance for distributing sand upon the rails. Under the circumstances the engineer told the plaintiff that he must get off and bleed the brakes. This is done by pulling the bleeder rod on each car where the brakes are pressing, and thereby letting the air out of the auxiliary cylinder. The bleeder rods, extending out, or nearly, to the side of the car, are situated near the center (lengthwise) of the car, varying somewhat with different cars. The "bleeding" is accomplished by pulling the rod outwards and holding it in this position till the air has escaped. It is the duty of the brakeman to bleed the brakes when ordered. In the present instance conditions required it.

The plaintiff, on receiving the order, completed the filling of his pipe, lighted it, and descended from the train. The place at which the plaintiff alighted was about one-quarter of a mile from the underpass bridge, which was the scene of the accident. The speed of the train was five or six miles an hour. This bridge, passing over a highway, carried two tracks with a girder between them, the girder being 17 inches wide and 39% inches high. The immediate place where the plaintiff alighted from the train was entirely free from obstruction, and safe for walking or running, and so continued until the bridge was reached. The plaintiff, with his lantern in his hand and pipe in his mouth, at once began bleeding the brakes, keeping up with the speed of the train until, being unconscious of the vicinity of the bridge, and looking, with the aid of his lantern, for the bleeder rod of a car, which he had just grasped, he came in contact with the girder of the bridge, was thrown beneath the cars, and most seriously injured. He estimates that he had bled four or five cars before the accident. The casualty occurred about 1 o'clock in the morning. The night was dark, starless, and somewhat misty. There is evidence to the effect that plaintiff had not noticed the peculiar construction of the Carmel bridge; that his attention had not been called to...