Warren v. Bangor, O. & O. T. Ry. Co.

• Decision Date: 01 March 1901
• Citation: 49 A. 609,95 Me. 115
• Parties: WARREN v. BANGOR, O. & O. T. RY. CO.
• Court: Maine Supreme Court

49 A. 609

95 Me. 115

WARREN

v. BANGOR, O. & O. T. RY. CO.

Supreme Judicial Court of Maine.

March 1, 1901.

(Official.)

Action on the case by Are Warren against the Bangor, Orono & Old Town Railway Company to recover damages which the plaintiff claims he has sustained in his property on account of a collision between his carriage, in which he was riding, and an electric car of the defendant company, at the junction of Broadway and Cumberland streets, in the city of Bangor, caused by the alleged negligence of the defendant company, in the evening of November 21, 1899. The jury returned a verdict for the plaintiff for $117. Motion for new trial. Granted.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, FOGLER, and POWERS, JJ.

M. Laughlin, for plaintiff.

E. O. Ryder, for defendant.

WHITEHOUSE, J. The plaintiff recovered a verdict for the damages alleged to have been sustained by reason of injuries to his horse, carriage, and harness, resulting from a collision between his team and one of the electric cars of the defendant company at the intersection of Broadway and Cumberland streets in Bangor.

The case comes to the law court on the defendant's motion to have the verdict set aside as against the evidence.

The accident happened on the 21st day of November, 1899, about 20 minutes before 7 o'clock in the evening. The plaintiff was driving into the city down Broadway with his horse harnessed to a Bangor top buggy. The electric car was running up Cumberland street on schedule time, on its regular trip from Bangor to Old Town, leaving West Market Square at 6:30. At its intersection with Cumberland street, Broadway is 83 feet wide and Cumberland street 50 feet wide at that point. The defendant's railway is near the center of Cumberland street, and running easterly across Broadway the grade is slightly ascending, but so nearly level that the rise is scarcely perceptible. At the corner of Broadway and Cumberland streets, on the west line of Broadway and the north line of Cumberland street, were dense buckthorn hedges 6 feet in height, which obstructed the plaintiff's view of Cumberland street west of Broadway until within about 50 feet of the place of collision. The plaintiff was a resident of Bangor, was in the habit of driving on Broadway frequently, and was familiar with these streets, and the conditions above described. On the evening in question it was dark and foggy, and the top of the plaintiff's carriage was up, and the sides put on. The electric car was a closed car, with vestibules. It was provided with a headlight, and the interior was lighted the entire length in the usual manner. The plaintiff says, in effect, that he failed to see the car until It "suddenly flashed onto" him after the horse was on the track, and that he then applied the whip in the hope of getting across the rails and avoiding a collision; but, when the car was about the center of Broadway, it struck the carriage on the fore wheel, throwing the horse to the right and the carriage to the left of the track.

The motorman in charge of the car testifies that he was not aware of the approach of the team until it was within 12 or 15 feet of the place of collision, and that he then applied the brake, and used every exertion to stop the car in season to prevent a collision, but was unable to do so.

The plaintiff thereupon contends, as the principal ground of defendant's liability, that the motorman was guilty of negligence in not exercising greater vigilance to discover an approaching team, and in not employing more effective measures to stop the car in season to avoid the accident; and he Introduces evidence tending to show that immediately before the collision the motorman was engaged in frivolous conversation with a passenger, and that others on the car saw the team before the motorman discovered it. The defendant insists that no failure of duty on the part of the motorman in these respects is shown by the evidence, and contends that, on...