Witherly v. Bangor & A. R. Co.

• Decision Date: 08 January 1932
• Citation: 158 A. 362
• Parties: WITHERLY v. BANGOR & A. R. CO.
• Court: Maine Supreme Court

158 A. 362

WITHERLY

v. BANGOR & A. R. CO.

Supreme Judicial Court of Maine.

Jan. 8, 1932.

Exceptions from Superior Court, Aroostook County.

Action by Murel Witherly against the Bangor & Aroostook Railroad Company. Verdict was ordered for defendant. On plaintiff's exception.

Exception overruled.

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

R. W. Shaw, of Houlton, for plaintiff.

Cook, Hutchinson, Pierce & Connell, of Portland, and James C. Madigan, of Houlton, for defendant.

DUNN, J.

Action by an automobilist to recover for personal injuries, and for damage to his car, from a grade crossing collision with a freight car. A verdict was ordered for the defendant. The plaintiff saved an exception.

On October 31, 1929, about 11:30 o'clock p. m., the night being dark but clear, plaintiff drove his automobile against an empty flat car, standing motionless across a highway, as part of a train.

The accident occurred at Dyer Brook, in proximity to the station and switching yards of the defendant.

Plaintiff alleged the defendant actionably negligent in failing to provide suitable signs, lights, and bells, and in neglecting to have a brakeman on the car, with a suitable lantern for the protection of highway travelers approaching the crossing.

The train had just been made up, and was about to pull out, southbound.

In making the train, sixteen cars, inclusive of the flat car, were hauled from a spur track to the main railroad track, and backed and coupled to another string of thirty-nine cars.

The main track, and a siding twenty feet northerly of it, cross the highway, which runs northeast and southwest, at acute angles. The flat car, counting from the locomotive, was thirteenth in line; the twelfth and fourteenth cars were box cars.

Plaintiff, accompanied by a guest passenger, was traveling southwest; his automobile lights "only focussed at twenty-five feet." The statutes exact that automobiles shall have front lamps of sufficient candle power to render any substantial object clearly discernible on a level way at least two hundred feet directly ahead. R. S. c. 29, § 82. Upon the plaintiff's own testimony, he violated the provisions of this statute. There may have been relationship between insufficient lights and injury.

No other traffic was moving in the vicinity, and at this hour of the night there would normally be no sound on the unlighted country road.

The highway approaches the crossing, straight for a thousand feet; it is moderately down grade for nine-tenths of the way; level almost to the crossing, and, beyond it, passes over a hill. The plaintiff traveled the road two or three times a year.

He saw, at the side of the road, three hundred and forty-seven feet from the crossing, the statutory warning sign, a white disc supported by a fixed post, bearing the letters "R. R.," and knew what they foretokened. Sixty feet farther on, or two hundred and eighty-seven feet from the crossing, at the side of the highway, was a so-called danger sign, that warns at night by reflecting the lights of vehicles. The lights on plaintiff's car caused the sign to glow.

Without request therefor having ever been made, the defendant maintains an automatic wigwag signal south of its main track. Wigwag signals are to protect against approaching trains. R. S. c. 64, § 88.

There was evidence that the red light on the wigwag was burning brightly. The plaintiff testified that, though he looked for this light, he did not see it. This is easily explained. A box car was between his sight and the light. That the box car hid the wag-wag light is immaterial, since the train itself was notice of its presence. Yardley v. Rutland R. Co. (1931) 103 Vt 182, 153 A. 195.

Witnesses attested that the bell on the wigwag was ringing continuously, but plaintiff said that he did not hear it. Nor, according to his testimony, did he hear engine whistles, notwithstanding the windows of his car were partly down.

On the version of the plaintiff, he slackened the speed of his automobile, at the disc, to twenty-five miles an hour; and then to twenty miles. He is testified to having admitted that, to the instant of first seeing the flat car, when his own car was across the siding, and he applied the brakes and attempted to swerve its course, he had traveled at a faster speed.

Whatever may be the fact concerning its speed, plaintiff's automobile proceeded to the main track, struck the flat car, and knocked it from the rails.

It is not in itself negligence for a railroad company to allow a train of cars to remain across a highway. Philadelphia & R. Ry. Co. v. Dillon (1921) 1 W. W. Harr. (Del.) 247, 114 A. 62, 15 A. L. R. 894; St Louis-San Francisco Ry. Co. v. Guthrie (1927) 216 Ala. 613, 114 So. 215, 56 A. L. R. 1110; Gulf, M. & N. R. Co. v. Holifield (1929) 152 Miss. 674, 120 So. 750; Hendley v. Chicago & N. W. Ry. Co. (1929) 198 Wis. 569, 225 N. W. 205. Negligent obstruction of a highway by a standing train is determined by whether, under all the circumstances, it is reasonable or otherwise. R. S. c. 64, § 79; State v. Grand Trunk Ry., 59 Me. 189; Killen v. New York Cent. R. Co., 225 App. Div. 8, 232 N. Y. S. 76.

The judge in the trial court was not more specific, in his statement directing the verdict, than that, giving plaintiff's evidence the most favorable viewpoint, it would not justify the jury in returning a verdict in his favor. Whether the judge held, as a matter of law, that there was no sufficient evidence of actionable negligence on the part of the defendant, need not be the subject of investigation. The trial court was not confined to this inquiry alone.

The substantive law of negligence requires proof, by the greater amount of credible evidence, of negligence on the part of the defendant; and, equally as important, proof that the plaintiff was not himself in fault, proximately causal to injury. Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Romeo v. Boston & Maine Railroad, 87 Me. 540, 547, 33 A. 24.

Literally, there was some evidence that, in approaching the crossing, the plaintiff had been careful. But this evidence is overwhelmed by opposing evidence, and the reasonable inferences deducible from established facts, that plaintiff did not exercise that due precaution which men of reasonable prudence, conscious of danger, usually exercise to avoid the incurrence of injury. The jury, therefore, had no evidence before it on which a verdict for the plaintiff could be based. Moulton v. Sanford, etc., Ry. Co., 99 Me. 508, 59 A. 1023; Cyr v. Landry, 114 Me. 188, 95 A. 883; Raymond v. Eldred, 127 Me. 11, 140 A. 608. To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that damage was occasioned solely by the negligence of the defendant. Johnson v. Hudson River R. R. Co., 20 N. Y. 65, 73, 75 Am. Dec. 375; Gahagan v. Boston & Lowell R. R. Co., 1 Allen (Mass.) 187, 79 Am. Dec. 724.

Care and vigilance must depend on surrounding conditions, and be proportioned to known danger. "A railroad crossing is known to be a dangerous place, and the man who, knowing it to be a railroad crossing, approaches it, is careless unless he approaches...