Richard v. Me. Cent. R. Co.

• Citation: 168 A. 811
• Parties: RICHARD v. MAINE CENT. R. CO. (two cases). SYLVESTER v. SAME (two cases).
• Decision Date: 03 November 1933
• Court: Maine Supreme Court

168 A. 811

RICHARD

v. MAINE CENT. R. CO. (two cases).

SYLVESTER

v. SAME (two cases).

Supreme Judicial Court of Maine.

Nov. 3, 1933.

Exceptions from Superior Court, Cumberland County.

Actions by Alma Richard, pro ami, by Henry Richard, by Adelard C. Sylvester, and by Marion Sylvester, pro ami, against the, Maine Central Railroad Company. Judgment of nonsuit, and plaintiffs bring exceptions.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Ellis L. Aldrich, of Brunswick, for plaintiffs.

Perkins & Weeks, of Waterville, for defendant.

THAXTER, Justice.

These cases arise out of a collision between an automobile, in which two of the plaintiffs were passengers, and a freight train standing on a highway crossing. In two of the cases the plaintiffs who are minors bring suit for personal injuries; in the other two their respective fathers seek to recover for medical expenses. At the conclusion of the plaintiff's evidence the presiding justice directed a nonsuit, and the cases are before us on exceptions to this ruling.

On December 28, 1932, about 8 o'clock in the evening, the two plaintiffs, Alma Richard and Marion Sylvester, were riding in an automobile with one Robert Morse on the Growstown road, so called, in Brunswick. He was driving. Miss Richard sat next to him and Miss Sylvester beside her, all on the front seat. The night was foggy. Dr. Foss, who arrived soon after the accident, testified that it was one of the thickest nights that he ever knew. Across the highway on which the plaintiffs were proceeding was a railroad crossing of the defendant. This was not protected by gates or automatic signals of any kind, and there were no important street lights in its vicinity. There were the usual signs without illumination warning travelers of the presence of the railroad. As the automobile approached this crossing the driver reduced his speed and proceeded very slowly. The windshield in front of the passengers was covered with mist. The wiper in front of the driver was operating, but in order to see better he had lowered the window on his side of the car and was leaning out as he approached the track. A freight train had been stopped on this crossing for fifteen minutes. There was no sound and there were no trainmen there. No one of the occupants of the automobile saw or heard anything to indicate that the road was blocked, until a collision took place with a box car of the train which was across the highway.

The facts of this case raise an issue not heretofore directly before the court in this state. The plaintiffs had the burden of establishing first their own duo care, and secondly the negligence of the defendant. The duty of passengers in automobiles has been many times discussed by this court. In this instance the vision of the girls was obscured. They were, however, proceeding at a very moderate rate of speed, and they knew that the driver was peering out beyond the side of the car in an attempt to better discern objects ahead of him. Though passing through a fog which obscured vision, it was not as a matter of law their duty to get out and walk. The question is whether they failed to take reasonable precautions under the conditions. Cole v. Wilson, 127 Me. 316, 143 A. 178. This was for the jury.

The real issue stressed in this case is as to the defendant's negligence. The rights of a railroad and the traveling public to the use of a highway at a grade crossing are reciprocal. Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. The only superior right of the railroad is the right of passage. Mitchell v. Bangor & Aroostook Railroad Co., 123 Me. 176, 122 A. 415. As an incident to this it may well be that the railroad may stop its trains across a highway and temporarily block it; but under such conditions the use which it makes of the way must be such as is reasonably necessary to enable it to perform its duties as a common carrier. The statutes of our state recognize this principle when they provide that "no way shall be unreasonably and negligently obstructed by engines, tenders, or cars." Rev. St. 1930, c. 64, § 79. The railroad itself acceded to it when it adopted rule 103D, which reads as follows: "No train or engine will obstruct any highway for a longer period than five consecutive minutes. Conductors will be particular to uncouple their trains and clear the crossings, if they find it necessary to remain longer."

It is indisputable that leaving an un-lighted obstruction in a highway at night creates a hazard for travelers. It makes but little difference whether this be an excavation, Kendall v. City of Des Moines, 183 Iowa, 866, 167 N. W. 684, an automobile, Rice v. Foley, 98 Conn. 372, 119 A. 353, a railroad crossing gate, Record v. Pennsylvania Railroad Co., 76 N. J. Law, 800, 72 A. 62, or a freight car, Mann v. Central of Georgia Railway Co., 43 Ga. App. 708, 160 S. E. 131. Whether such obstruction may be the proximate cause of an injury depends on the circumstances of each individual case, and particularly on whether or not the traveler in the exercise of due care should have seen it and have avoided a collision with it. The rule governing the liability of a railroad for negligence in leaving a...