Romeo v. Boston & M. R. R.

Decision Date10 May 1895
Citation33 A. 24,87 Me. 540
PartiesROMEO v. BOSTON & M. R. R.
CourtMaine Supreme Court

(Official.)

Report from supreme judicial court, York county.

Action by Marjorie Romeo, by her next friend, against the Boston & Maine Railroad, Heard on report of testimony and stipulation. Judgment of nonsuit.

This was an action on the case by the minor plaintiff, a girl 19 years old, to recover damages for injuries received by being struck by an east bound train while passing, about 9 o'clock p. m., July 17, 1893, along Main street, in Biddeford, where it crosses the defendant's railroad at grade.

The acts of negligence alleged in the declaration were the running of the train at a rate of speed in excess of that allowed by law, In the compact part of a city, where gates or flagmen are not provided; also, a failure to lower the arms of the gates which stood on both sides of the track, and the want of signals by the flagman stationed at the place.

The plaintiff testified that she, with another girl about her own age, had been visiting a merry go round, located northerly of defendant's tracks and easterly of Main street, and was returning southerly across the tracks. It appeared that there were then two tracks in use across the street, and another in course of construction; and the gates, which for some years had been in use there, were not then in operation because of the removal of the posts, to be reset to cover the spur track then being constructed, and which occupied the ground where one of the posts had stood. Those upon the northerly side were detached from their posts, while one arm of those upon the southerly side remained erect upon the post and unused, that particular post not requiring resetting. They reached Main street from the lot where the merry go round was located, at a point about 100 feet northerly of the tracks, and were walking slowly, side by side, the plaintiff upon the westerly side of her friend, towards the tracks.

The plaintiff appeared to have been familiar with the crossing, having lived in Biddeford most of her life, and crossed it many times. She said: "Just as we got on the sidewalk," she saw "gates up in the air. I did not pay much attention to it, and couldn't tell which side it was on." Her friend testified: "I saw one gate, and it was up." Neither heard whistle or bell, or saw headlight or train, until, as the plaintiff said: "It was on us. I lost my senses." Her friend said: "Almost on us. I screamed and started to run. Don't remember what I did." The friend was seized by a person present who pulled her in front of the train across the track to the southerly side. Plaintiff did not get over, but was struck.

It appeared, from a plan admitted in the case, that the coming train, which was on the southernmost track, was visible from any point in most or all of the way from the point where the plaintiff entered upon the street to the crossing, about 2,420 feet.

Several witnesses saw the headlight burning, and heard the whistle—the usual crossing whistle—of the coming train, and saw the flagman, with flag or lantern, in the street near his house, upon the northerly side of the crossing; and one heard him cry out a warning. One saw the train about 150 yards distant; another saw it about 250 yards away.

The other material facts appear in the opinion.

B. P. Hamilton and B. P. Cleaves, for plaintiff.

G. C. Yeaton, for defendant.

WISWELL, J. This case comes to the law court upon a report of the plaintiff's testimony, with the stipulation that if upon this testimony the action can be maintained, it shall be sent back for trial; otherwise, a nonsuit is to be ordered.

About 9 o'clock on the evening of July 17th, last, the plaintiff, a young woman 19 years of age, while walking on Main street, in the city of Biddeford, across the railroad tracks of the defendant corporation, was struck by a locomotive attached to a regular train on that road, and sustained certain injuries.

In order for her to recover for these injuries, it is incumbent upon her to prove negligence upon the part of the defendant corporation, and that no negligence upon her part contributed to the accident.

It is admitted that this crossing was near the compact part of the city of Biddeford. Consequently, the running of the train across this street at a greater speed than six miles an hour, unless there was either a gate or a flagman at the crossing, would be in violation of chapter 377, Laws 1885, and in and of itself negligence. Although gates were maintained at this crossing, upon the night of the accident they were in temporary disuse, because of work being done at that particular place, and were left open. And although a flagman was stationed at the crossing, a jury might be authorized to come to the conclusion, from the evidence before us, that, at the...

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22 cases
  • Fleenor v. Oregon Short Line Railroad Co.
    • United States
    • Idaho Supreme Court
    • July 2, 1909
    ... ... contributes to it as to deprive him of any right to complain ... ( Chicago R. I. & P. v. Houston, 95 U.S. 697, 24 ... L.Ed. 542; Romeo v. Boston & Maine R. R., 87 Me ... 540, 33 A. 24; Schlimgen v. Chicago, M. & St. P. R ... Co., 90 Wis. 186, 62 N.W. 1045.) The courts hold ... ...
  • Gibbons v. N. O. Terminal Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 5, 1925
    ...N.E. 161, 59 N.Y. 468, 28 N.E. 149, 75 A. 912, 111 N.E. 960, 160 N.W. 261, 153 P. 731, 113 S.W. 1163, 89 N.E. 625, 84 P. 176, 88 S.E. 178, 33 A. 24, 93 701, 94 A. 509, 124 A. 284, 93 So. 564. Ordinance 1615 does not make it the duty of the Railroad to keep the gate closed, but, on the contr......
  • Birmingham Southern R. Co. v. Harrison
    • United States
    • Alabama Supreme Court
    • January 16, 1919
    ... ... 386; Penn. R. Co. v. Pfuelb, 60 N.J.Law, 278, 37 A ... 1100; Dawe, Adm'r, v. Flint & P.M.R. Co., 102 ... Mich. 307, 60 N.W. 838; Romeo v. Boston & Maine R., ... 87 Me. 540, 33 A. 24; Thomp. Neg. § 1614. The rule is the ... same as to maintaining a flagman. Ala. G.S.R. Co. v ... ...
  • Illinois Cent. R. Co. v. Bethea
    • United States
    • Mississippi Supreme Court
    • May 7, 1906
    ...Co. v. Gustofson (Colo.), 41 P. 505; Berry v. Pennsylvania R. R. Co., 48 N. J. Law, 141; Van Riper v. Railroad Co., 59 A. 26; Romeo v. Railroad Co., 87 Me. 540; Railroad Co. v. Newbern, 62 Md. 391; Shultz v. Railroad Co. (N. Y.), 69 Hun., 515. The court below erred in admitting in evidence ......
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