Raymond v. Portland R. Co.

• Citation: 100 Me. 529,62 A. 602
• Parties: RAYMOND v. PORTLAND R. CO.
• Decision Date: 06 December 1905
• Court: Supreme Judicial Court of Maine (US)

62 A. 602

100 Me. 529

RAYMOND

v. PORTLAND R. CO.

Supreme Judicial Court of Maine.

Dec. 6, 1905.

Exceptions from Supreme Judicial Court, Cumberland County.

Action on the case by Ada I. Raymond against Portland Railroad Company for negligence, to recover for personal injuries to the plaintiff while a passenger on one of the cars of the defendant, a street railway corporation. Verdict for plaintiff for $969. Defendant excepted to a certain instruction given by the presiding justice at the request of the plaintiff's counsel, and also filed a general motion for a new trial. Exceptions sustained. Motion not considered.

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

Charles E. Gurney, for plaintiff. Libby, Robinson, Turner & Ives, for defendant.

SPEAR, J. This is an action on the case for negligence to recover for personal injuries to the plaintiff while a passenger on one of the cars of the defendant, a street railway corporation. The case comes up on motion and exceptions. It was alleged in the plaintiff's declaration, and evidence was introduced by the plaintiff tending to show that the defendant's car had been brought to a full stop near the tracks of a steam railroad, and that the car was started again while the plaintiff was in the act of alighting therefrom, and before she had had sufficient and reasonable time to alight, whereby she was thrown and injured.

The defendants offered evidence tending to show that the car, an open one, had come to a stop near the point of intersection with the tracks of the steam railroad; that it was the practice and custom of the defendants to stop there, but the only purpose of the stop was to safeguard the crossing of the said tracks, it not being a station or place where a stop was regularly made for passengers to get off the defendant's cars, although it was in evidence that passengers did sometimes get off or on the defendant's cars there; that throughout the stop the conductor of the car remained upon the car, and was standing all the time on the running board on plaintiff's side of the car, but a few feet behind her, and with his attention upon his passengers of whom he had an unobstructed view; that another employs of the defendant's left the car and went forward to see if the crossing could be made in safety, and, upon finding the way clear, gave the signal for the car to proceed; that the plaintiff never made any movement to leave her seat until the car was again in motion after having made its stop to safeguard the crossing of the tracks, when, without giving any indication by signal or otherwise to the conductor or anybody else that she desired or intended to alight, she suddenly slid down from her seat to the running board, and thence off the car while it was in motion and gathering headway to cross the tracks of the steam railroad. The report of the evidence shows that the contention of the respective parties as above set forth is correctly stated.

Upon these contentions, at the request of the plaintiffs counsel, the presiding justice gave the following instruction to the jury: "If you believe that this was the crossing of tracks, and that under the practice and custom of the company the cars stop at this crossing, and believe people get on or off at this place while cars are stopped, then it was the duty of the conductor in charge of the car to ascertain for himself whether passengers wanted to get on or off; and, if he could by great care discover who wanted to get off, whether they wanted to get off, that would be equivalent to actual knowledge on the subject." To this instruction the defendants seasonably excepted. The defendants also requested certain instructions, but, in view of the conclusion necessarily arrived at with respect to the above instruction, it becomes unnecessary to consider this request by the defendants. We think the exception must be sustained. The instruction imposed upon the conductor the duty of exercising "great care" to discover if any one wanted to get off the car. This instruction is not modified by any other clause in the charge, but rather emphasized by the statement made immediately before it that "the railroad was bound to use greater than ordinary care."

We think the law required that the conductor should have acted only in the exercise of reasonable care. The phrase "great care," as used in the instruction, was without limitation. It was left entirely to the jury to say what meaning should be attached to it. They may have said that it was the duty of the conductor to inquire of every passenger upon his car if they wished to alight, and that, if he failed to do this in the exercise of the duty requiring "great care," he was negligent. Or, if so strenuous a duty as to inquire of each passenger was not deemed necessary in the exercise of "great care," the jury might have found that some other burdensome duty was imposed by the instruction given.

The rule of law now generally recognized by the great weight of authority is that the legal measure of duty, except that made absolute by law, with respect to nearly all legal relations, is better expressed by the phrases "due care," "reasonable care," or "ordinary care," terms used interchangeably. "Reasonable care" may be defined as such care as an ordinarily reasonable and prudent person exercises with respect to his own affairs,...