Shepard v. Lewiston, B. & B. St. Ry.

• Decision Date: 21 September 1906
• Parties: SHEPARD v. LEWISTON, B. & B. ST. RY.
• Court: Maine Supreme Court

65 A. 20

101 Me. 591

SHEPARD

v. LEWISTON, B. & B. ST. RY.

Supreme Judicial Court of Maine.

Sept. 21, 1906.

On motion from Supreme Judicial Court, Androscoggin County.

Action by George E. Shepard against the Lewiston, Brunswick & Bath Street Railway. Verdict for defendant. Motion by plaintiff for new trial. Motion overruled.

Action on the case to recover damages for personal injuries sustained by the plaintiff and caused by the alleged negligence of the defendant. Verdict for defendant The plaintiff then filed a general motion for a new trial, and also a special motion for a new trial, alleging in this last-named motion in support thereof as follows:

"First C. I. Barker, the foreman of the jury which sat upon said ease and rendered said verdict while sitting upon said case and deliberating thereon possessed and had a 'blue book' so called, in which were free tickets for passages on the defendant's electric railroad, which book had been, given to said foreman by said defendant corporation, which fact was without fault or collusion on the part of the plaintiff, and the information of the foreman's possession of said blue book has come to the knowledge of the plaintiff and his counsel since the close of the trial, and that neither the plaintiff nor his counsel had any suspicion or knowledge of said fact prior to, or during the progress of, the trial.

"Second. The treasurer of said defendant corporation by whom said blue book was issued was present when the jurors in said case were about to enter upon the discharge of their duties and the presiding justice stated that any stockholder in the defendant corporation would be disqualified to sit, thereby emphasizing the court's desire to have an absolutely impartial jury, and yet said treasurer did not disclose to the court that the juror Barker possessed said book."

After the filing of the special motion, testimony relating to the matters alleged in the motion was received by the court both from the plaintiff and the defendant.

Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Tascus Atwood, for plaintiff. Newell & Skelton, for defendant

SAVAGE, J. Case for damages sustained on account of the alleged negligence of the defendant The plaintiff, on the day in question, was engaged in moving a threshing machine loaded on, wheels from a dooryard into the road. In so doing he crossed the defendant's track by the roadside. He was on foot, driving the team, and was by the side of the horses or load. On the other side of the load, at the same time, one of the defendant's electric cars was approaching. And it came into collision with the rear end of the plaintiff's load at the point of crossing, breaking down the rear wheels and causing the load to fall upon the plaintiff, so that he received the injuries complained of. The verdict was for the defendant, and the only question presented by the general motion is whether the verdict is shown to be so clearly wrong as to require the interference of the court.

The questions whether the defendant was negligent and whether the plaintiff was guilty of contributory negligence were both sharply contested. We do not, however, find it necessary to consider the first question, because we think the jury were authorized by the evidence to determine the issue of contributory negligence adversely to the plaintiff, and that is fatal to his motion. The plaintiff claims that at a point in the dooryard about 90 feet from the railroad, the defendant's track in the direction from which the car was approaching, or at least a car upon the track, could be seen for about 1,400 feet. And he testified that at that point, while driving out of the yard, he looked at the track in that direction, as far as he could see, and that no car was in sight He also testified that he did not look afterwards, and that he did not hear the sound of the approaching car, and was not aware of its whereabouts until the instant of collision. His contention is that, having looked where he says he did, and no car being in sight or nearer than 1,400 feet, it was not negligence for him to proceed across the track, 90 or 100 feet at the rate of about two miles an hour, without looking again.

It does not seem to be disputed that, from a point about 34 feet from the track and until the track was reached, an approaching car might all the time have been seen by the plaintiff for a distance of about 1,400 feet along the track, and that he could have seen this car in ample season to have stopped in safety, if he had then looked. But he did not look. The defendant claims that the point of view whore the plaintiff says he looked was so obstructed by a hedge and trees, that he could not have seen the track as he says he did, or a car, if one had been there. And from this the defendant argues that the jury were warranted in finding that the plaintiff did not look at all at any place where he could see, and hence that he was clearly guilty of negligence. Butler v. Railway, 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267. Upon the question as to what the plaintiff could see, and how far, from the point where he says he looked, much evidence, pro and con, was elicited. And, besides the jury were permitted to take a view. What they saw we have no means of knowing. From the evidence in the case we think that the jury were authorized to find, as claimed by the defendant, that the plaintiff could not see as he says he did, and so was negligent in not looking later, when he could see, in season to protect himself....