Plante v. Canadian Nat. Rys

• Decision Date: 03 January 1942
• Citation: 23 A.2d 814
• Parties: PLANTE v. CANADIAN NAT. RYS. et al.
• Court: Maine Supreme Court

23 A.2d 814

PLANTE

v. CANADIAN NAT. RYS. et al.

Supreme Judicial Court of Maine.

Jan. 3, 1942.

[Copyrighted material omitted.]

On Motion from Superior Court, Androscoggin County.

Action by Ralph Plante against the Canadian National Railways and Edgar St. Laurent for personal injuries in railway crossing collision. Verdict for plaintiff for $600 against both defendants. On defendants' separate general motions for new trial.

Order in accordance with opinion.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Berman & Berman, of Lewiston, for plaintiff.

Skelton & Mahon, of Lewiston, for defendant Edgar St. Laurent.

Fred H. Lancaster, of Lewiston, and H. P. Sweetser, of Portland, for defendant Canadian Nat. Rys.

MURCHIE, Justice.

This case comes to the court on separate general motions for a, new trial filed on behalf of both defendants following a verdict for the plaintiff for $600 against both defendants. There are no exceptions.

The material facts are not in dispute. From the evidence it definitely and clearly appears that the plaintiff, late at night in midwinter, was traveling as a passenger in an automobile, driven by the defendant St. Laurent, along a highway in the City of Auburn, across which the defendant Canadian National Railways maintained a crossing at grade; that, within a few minutes prior to the time when the automobile reached the crossing, a special freight train, operating on a fixed daily schedule and approximately on time, was stopped there for the purpose of cutting out three freight cars and placing the same upon a siding; that the train was a relatively long one and extended more than seven hundred feet along the track both north and south of the highway; and that a refrigerator car about forty feet long and nine feet high, painted yellow with black lettering, extended across and completely blocked the highway. The night was clear but dark, and the road surface somewhat slippery. The plaintiff was not familiar with the crossing.

The evidence does not clearly establish how long the train had been stationary, or the condition of the paint on the refrigerator car, but it is entirely clear that the time interval was greater than that period of five minutes which the plaintiff claims to be controlling, and the jury would have been fully justified in finding that the particular car had not been freshly painted but presented that dingy, neutral appearance which is often noticeable in railway equipment.

The defendant St. Laurent was proceeding at a rate of speed variously estimated at from twenty miles per hour (or slightly under) to thirty. Called as a witness by the plaintiff, he estimated his own speed at "around twenty-five miles an hour." His automobile was in good condition, as were the lights. All persons riding in the car testified for the plaintiff, but no one, other than the defendant St. Laurent, saw the obstruction prior to the impact. He testified that he first saw it when within forty or fifty feet, but was unable to bring his car to a stop because of hard-packed snow and ice on the road surface.

The claim against the defendant St. Laurent is asserted on the ground that he neglected duties (1) to drive at a reasonable rate of speed, and (2) to keep reasonable watch for obstructing trains, with the vehicle under such control that it could be seasonably brought to a stop, and that against the defendant railway is based upon the breach of duties (1) to refrain from unreasonably obstructing the highway, and (2) to give warning, in case of obstruction, to highway traffic. The defendant St. Laurent, in his pleadings, asserts that the night was "dark, cloudy and stormy", but there is no support in the evidence for anything beyond the element of darkness. On the contrary, undisputed testimony shows that the night was clear and the visibility good.

The jury verdict imports findings of fact that the defendant St. Laurent and an employee of the defendant Canadian National Railways were severally guilty of acts of negligence; that their separate negligent acts contributed proximately to cause the injuries; and that the plaintiff was in the exercise of due care.

There is no sound basis for contesting the dual findings as to the negligence of the defendant St. Laurent and its causal connection with the accident. Collision at a railroad crossing constitutes prima facie evidence of negligence on the part of a traveler struck on the crossing by an approaching train, or running into the side of a train standing upon, or moving across one. Hesseltine v. Maine Central Railroad Co., 130 Me. 196, 154 A. 264; Witherly v. Bangor & Aroostook Railroad Co., 131 Me. 4, 158 A. 362. Whether excessive speed or failure to watch was the basis of the verdict, there was no evidence to refute the prima facie case against him, and it is entirely obvious that it was either the sole, or a substantial, proximate cause of the damage.

The same thing is true with reference to the finding as to due care on the part of the plaintiff since, as already noted, he was not familiar with the crossing and the facts do not indicate a degree of negligence on the part of the driver which should have charged him with responsibility to give warning or take any other action. Our court long since decided that the negligence of a driver could not be imputed to his passenger. State of Maine v. Boston & Maine Railroad Co., 80 Me. 430, 15 A. 36.

This leaves for determination the question of negligence on the part of the defendant railway and its causal connection with the injuries. Decision must be made within the established principles that a jury verdict should not be set aside unless it is "clearly and unmistakably wrong";. McNerney v. Inhabitants of East Livermore, 83 Me. 449, 22 A. 372, 373; Scarles v. Ross et al, 134 Me. 77, 181 A. 820; Marr v. Hicks, 136 Me. 33, 1 A.2d 271; and that in the absence of exceptions, it must be assumed that the findings were made after proper instruction upon the applicable law. Frye v. Kenney, 136 Me. 112, 3 A.2d 433. The finding of negligence may have been based on either the maintenance of an obstruction contrary to the regulation imposed by R.S.1930, Chap. 64, Sec. 79, that railroads shall not "unreasonably and negligently" obstruct highway crossings, or the rule enunciated in Richard v. Maine Central Railroad Co., 132 Me. 197, 168 A. 811, 812, that a stationary unlighted freight train upon a crossing at night creates "a hazard for travelers" which may impose a duty to warn.

As to the first ground, it is apparent from the record that the sole question is whether the train constituted an obstruction within the rule that violation of a regulation imposed by law creates a presumption of negligence. Nadeau v. Perkins, 135 Me. 215, 193 A. 877. There is no suggestion in the testimony of any unreasonable and negligent obstruction in fact. On the contrary, the evidence is undisputed that the train crew proceeded expeditiously to cut out the cars and place them upon the siding, and the plaintiff offers no authority for the claim, obviously implied in his examination of the conductor of the train, that the defendant railway could have conducted its transportation by stopping where no cars would have been left standing on the highway or by breaking the train at a second point to leave the crossing free. Paraphrasing an earlier declaration of this court, the public benefit of rail transportation, "viz., quickness and economy" in handling freight, "would be greatly lessened" by the delay and expense involved in either such method. "The traveler upon the common road is not seriously inconvenienced by the railroad crossings." Giberson v. Bangor & Aroostook Railroad Co., 89 Me. 337, 36 A. 400, 401.

Plaintiff's reliance on this point rests squarely upon the claim that the obstruction was negligent in law because the train had been standing on the crossing for more than five minutes. The statute fixes no time interval which if exceeded will represent an unreasonable and negligent obstruction. There has been no judicial determination upon the point. The claim is that a rule of the defendant, adopted for the government of its employees, which reads that a "highway must not be obstructed by switching operations for more than five minutes at a time", has measured off a five-minute interval as that obstruction which is inhibited by statute. For this extension of the principle declared in Nadeau v. Perkins, supra, the plaintiff offers as authority two cases decided in other jurisdictions and comment thereon in Wigmore's Evidence. The cases, Chicago & A. Ry. Co. v. Eaton, 194 Ill. 441, 62 N.E. 784, 88 Am.St.Rep. 161, and Stevens v. Boston Elevated Railway, 184 Mass. 476, 69 N.E. 338, support the principle that violation of a rule adopted in the interest of safety for third persons may be considered evidence of negligence, but there is nothing in the instant case to justify belief that the particular rule was adopted to serve any such purpose. It seems apparent that the rule proved was adopted to forestall the imposition of penalties under the statute. In State of Maine v. Grand Trunk Railway of Canada, 59 Me. 189, the only decided case which furnishes a direct interpretation of the legislation on the particular point, an indictment was held sufficient on allegation that, because of an unreasonable and negligent obstruction, "people * * * could not * * * go and return, pass and repass * * * along said highway, as they ought and were accustomed so to do, to the great damage and common nuisance" of all citizens. The rule was clearly violated but the verdict must be held clearly and manifestly wrong if it was based upon a finding that the defendant's rule furnished statute interpretation that anything in excess of a five-minute delay would be a violation of law.

The alternative of basing liability on a failure to warn highway traffic requires consideration of the applicable...