Sherman v. Maine Cent. R. Co.

• Decision Date: 21 May 1894
• Citation: 30 A. 69,86 Me. 422
• Parties: SHERMAN v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

30 A. 69

86 Me. 422

SHERMAN

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

May 21, 1894.

(Official.)

Exceptions from supreme judicial court, Waldo county.

Action by Charles E. Sherman against the Maine Central Railroad Company. Verdict for plaintiff, and defendant excepts Exceptions overruled.

Heath & Tuell, for plaintiff.

Webb, Johnson & Webb, for defendant.

WALTON, J. This is an action based on that provision of the Revised Statutes which makes railroad corporations responsible for injuries caused by fires communicated by their locomotive engines. Rev. St. c. 51, § 64. The plaintiff was the lessee of a building near the track of the Maine Central Railroad Company in Burnham. He used the upper part of the building for a dwelling house, and the lower part for a store. October 6, 1892, the building and most of its contents were consumed by fire. The plaintiff claims that the fire was communicated to the building by one of the defendant's locomotive engines, and he has obtained a verdict against the company for $7,180.94. The case is before the law court on motion and exceptions.

Exceptions: It appears that one corner of the building extended onto the location of the defendant's roadway some six or eight feet; and at the trial in the court below the defendant's counsel requested the presiding justice to instruct the jury that the erection of that portion of the store which was within the lines of the defendant's roadway was unlawful, unless erected for the convenience of and to facilitate the defendant's business authorized under its charter; that neither the plaintiff nor those under whom he occupied had a lawful right to erect a building within the defendant's roadway for their own convenience or use alone; that such erection would be inconsistent with the purposes for which the charter was granted; that it was the duty of the company to preserve the roadway for the uses for which it was incorporated, and it had no right to permit other parties to erect buildings thereon for the sole use of parties other than the railroad; that the railroad had the exclusive control of the land within its roadway, and it was not at liberty to alienate any part of it to be used by other parties for purposes not contemplated by its charter; that while Mr. Tucker, the general manager and vice president of the corporation, had the right to license the erection of buildings within the roadway, or the use of those having been previously erected there, provided such erection or use was for the convenience of the railroad, or to facilitate its business, he had no authority to license such erection, or the use of it, for the sole use and convenience of others, in a business not connected with the defendant's.

The presiding justice did not give the requested instructions in the language employed by counsel; but he instructed the jury that if there was a want of ordinary care on the part of the plaintiff, in allowing his goods to remain in a building, a part of which was within the located limits of the defendant's roadway, whether there by license or otherwise, and such want of care caused or contributed to the result, the plaintiff could...