York v. Maine Cent. R. Co.

• Decision Date: 16 December 1891
• Citation: 81 Me. 117,24 A. 790
• Parties: YORK v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

24 A. 790

81 Me. 117

YORK

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

Dec. 16, 1891.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action by Ida M. York against the Maine Central Railroad Company for personal injuries. Before trial she died, and Elbridge G. York, as deceased's administrator, prosecuted the suit. There was a verdict for plaintiff, and defendant excepts. Exceptions overruled.

Jasper Hutchings, for plaintiff.

Wilson & Woodard, for defendant.

EMERY, J. This is an action of the case counting on the defendant's negligence in running a train past a high way crossing at East Newport, whereby the plaintiff's intestate, a traveler upon the highway, was injured. The verdict of the jury was for the plaintiff, and the defendant has moved to set aside the verdict as against evidence, and has also excepted to one ruling of the presiding justice.

From the evidence reported the following facts may be gathered: The crossing is a short distance west of the East Newport station. The railroad and the highway (from Newport to Stetson) approach the crossing in gradually converging lines, and for half a mile or more before reaching the crossing are nearly parallel. Near the crossing the railroad curves gradually to the south, and crosses the highway at an angle of about 33 degrees. The grade of the railroad is descending all the way. The grade of the highway is nearly level to the brow of a hill about 300 feet from the crossing. It there descends to within about 50 feet of the crossing, where it again becomes nearly level. The drop from the top to the bottom of the hill is about 15 feet. About 20 rods west from the crossing, and between the highway and the railroad, is the dwelling house of Mr. Colcord.

A traveler on the highway going east had a near and plain view of the railroad on his left for upwards of half a mile before reaching the Colcord house. Near that house the view became more or less obstructed by an orchard, the house and outbuildings, bushes, wood piles, and high land; the railroad and the high way both running somewhat in a cut down the hill. At a point on the highway some 75 feet west of the crossing the traveler could plainly see back on the railroad track some 300 feet westerly.

Such being the situation, Miss York, the plaintiff's intestate, was alone in a top carriage, driving along this high way, easterly towards this crossing. The defendant's freight train of 23 cars came along at the same time at a speed of about 15 miles an hour. She undoubtedly heard the whistle, and the train coming up behind her. She may not have looked back, but she was clearly apprised of the train's approach to the crossing. She drove on at a gentle trot down the hill past the Colcord house, and presently saw the locomotive and several cars pass on ahead of her over the crossing, and leave the crossing clear. But some 400 feet back from the crossing the defendant's servants in charge of the train severed the train in order to make a flying or running switch at East Newport station. The locomotive and tender with four cars passed rapidly on, and the remaining cars followed more slowly, impelled only by gravity and the momentum, and uncontrollable except by the ordinary hand brake. When the first section of the train passed the crossing, the rear section was from 100 to 175 feet behind. No necessity was shown for making this flying switch across the highway.

Miss York evidently did not see or hear this rear section, for after the passage of the first section she drove along to the seemingly clear crossing, to pass it. The rear section, however, rushed on from behind upon the crossing, causing the horse to suddenly swerve to the right and throw out Miss York, to her injury. There were no gates nor flagmen at this crossing. The brakeman on the rear car of the first section testified to making signs to Miss York of the danger of crossing there; but it does not appear that she understood, or even saw, these signs. There was also evidence of other minor circumstances which it does not seem to us necessary to state.

Two questions, of course, were directly involved in the trial of this case: (1) Was it negligence in the defendant company to separate its train to make a flying switch over that crossing? (2) Was it contributory negligence in Miss York, the plaintiff's intestate, not to lookback up the track for possible cars or trains when she arrived at the crossing?

Negligence may consist of the doing an act which a reasonable and prudent man, mindful of his own conduct, and of the safety and rights of others, would not ordinarily have done under all the circumstances of the situation; or it may consist of the omission to do an act which such a person under the existing circumstances would ordinarily have done. The duty to do or not to do is measured by the usual conduct of reasoning, prudent men, and by the exigencies of the occasion. The standard of duty is what thoughtful, prudent men, mindful of themselves and of others, might reasonably be expected to do or not to do under all the circumstance of the particular case. The type is not the very prudent, the very circumspect man, but the man who answers to the popular conception of a prudent, reasonable man. The thing to be done or left undone is what would seem to such men to be suggested by all the appearances, probabilities, and other circumstances of the time, place, and events.

All such circumstances may be undisputed, and in such case the only question is whether the act or omission under consideration comes up to the above-stated legal standard of duty, or falls below that standard, and into the class of negligent acts or omissions. In our system of jurisprudence the determination of this last question is within the province of the jury. Not only is it the duty of the jury to ascertain what was done or omitted, and all the attendant circumstances, but it is also the duty of the jury to determine whether under all those circumstances, the act or omission was up to the standard or was negligent. The theory is that 12 men of the average of the community, conversant with every-day affairs, and with what men do and don't do; more or less familiar in their own experience with similar circumstances and conditions and with the usual conduct of men under them; coming together into consultation from various modes of life, occupations, and points of view, and applying their separate experiences and observations,—can by their unanimous conclusion form the best attainable judgment upon such a question. Twelve men of affairs, such as Juries are supposed to be composed of, would naturally have a wider experience and broader observation in such matters than any single judge, however learned.

In some cases, however, the act or omission, under all the circumstances, may be so plainly and indisputably negligent or otherwise, that there can be do need to ask for the judgment of the jury upon the question. As said by the chief justice in I, asky v. Railroad Co., 83 Me. 470, 22 Atl. Rep. 367, when the facts are undisputed, and the conclusion to be drawn from them is indisputable, the question may be determined by the court.

For instance, if a railroad company should make a flying switch across a frequented street in the nighttime, without providing any signal of danger, or giving any notice of the approach of the rear section, such an act, measured by the standard, would be unmistakably and indisputably reckless or negligent. Railroad Co. v. Converse, 139 U. S. 467, 11 Sup. Ct. Rep. 569. Again, if a traveler upon a highway approaching a railroad crossing, where there are no indications that a train may be expected, should omit to look or listen for a train, his omission, unexplained, would be so clearly negligent, the court would not hesitate to take the case from the jury. Chase v. Railroad Co., 78 Me. 346, 5 Atl. Rep. 771.

To apply these principles to the facts above stated:

1. The railroad and the highway being nearly parallel for some distance, and crossing at an acute angle, the train came up behind the traveler, so that a traveler near the crossing would have to look back over his shoulder to see what was coming on the track. There was more or less obstruction to the view from a point 50 feet distant from the crossing back some 300 feet on the highway. The highway was a thoroughfare between two towns, one of them...