91 Me. 399 | Me. | 1898
The plaintiff recovered a verdict of $140.68 for the loss of a horse and injuries to a wagon and harness resulting from a collision with one of the defendant’s cars, and the case comes to the law court on the defendant’s motion to have the verdict set aside as against the evidence.
The accident occurred on the afternoon of August third, 1896, on Gilman hill in Orouo at a point about thirty rods distant from the brow of the hill. The plaintiff was on his way to Orono with a dump cart drawn by two horses, and at the point above named met an acquaintance by the name of Palmer with a hay-rack drawn by two horses on the way to Bangor. The plaintiff and Palmer-stopped their teams to talk for a few minutes, and while standing there, according to the plaintiff’s testimony the two teams were nearly opposite each other, Palmer’s off wheel being in the ditch and the plaintiff’s team between Palmer’s and the railroad, about six inches from the track. While the plaintiff was thus engaged in conversation with Palmer, neither giving attention to his team nor exercising vigilance respecting the approach of the defendant’s cars, one of the electric cars appeared on the brow of the hill, on schedule time. The plaintiff testifies that although he had an unobstructed view, and could have seen the car twenty-five or thirty rods away, he was not in fact aware of its approach until it was within ten rods of his team; that his horses then began to “prance round” and to back; that the sounding of the gong by the motor-man only “made it worse;” that the car was coming down the hill “four times as fast as he ever saw cars running in
On the other hand, the defendant insists that the car was running on regular time and at the usual rate of speed; that the motor-man commenced ringing his gong as soon as he saw the team from the brow of the hill; that the horses at first exhibited no signs -of being frightened, and that he had a right to assume from the attitude and conduct of the plaintiff that there was no danger in proceeding in the ordinary manner; that as soon as he had reasonable ground to apprehend that the team would be an obstruction on the track, he 'reversed the power and promptly used all the means at his command to stop the car and prevent a collision. The defendant accordingly contends that there is no just ground of liability on the part of the defendant company; and that the injury resulted from the plaintiff’s own negligence in using the highway under such circumstances for the purpose of having a social interview with another traveler, and from his gross inattention and apparent indifference to the movements of the defendant’s cars.
It is impossible to resist the conclusion that the plaintiff himself immediately before the collision was not in the exercise of reasonable and ordinary care and caution under the circumstances disclosed by the testimony. Highways are constructed and maintained for the accommodation of travelers, and not as places of resort for business negotiations or social converse. All travelers with teams have equal rights on the highway, but each must exercise his right in a reasonable manner and use the way with due regard to the rights of others. And since highways have been subjected to a new mode of use by the introduction of street railways, a still higher degree of attention, vigilance and prudence is requisite to fill the measure of ordinary care demanded of the traveler. Travelers with teams, and proprietors of street cars still have concur
On the other hand, it is scarcely less difficult to resist the conclusion that, upon the facts reported, the jury were fairly authorized to find that the defendant’s servants in charge of the car, on the occasion in question, failed to exercise that degree of precaution in slackening the speed of the car, which the exigencies of the situation demanded.
It is not in' controversy that the plaintiff’s team was standing within six inches of the rail of the defendant’s road, and in view of the fact that the lateral projection of the car over the wheel and the track is about twice that distance on each side, the team was as certainly an obstruction to the free passage of the car as it would have been if one wheel of the cart had been between the rails. When the car arrived at the brow of the hill thirty rods distant from the team, the motor-man’s view of the team was entirely unobstructed. He admits that he saw the team at that point; and if he had observed its relative situation attentively, it must have been apparent to him at once that a collision was inevitable unless the position of the team was promptly changed, or the car seasonably stopped. When twenty-five rods away he did not fail to observe that the plaintiff was absorbed in conversation and apparently unconscious of the approach of the car. If it be conceded that the statement of the conductor was correct, that the car was running at the rate of only seven miles an hour after it went over the brow of the hill, it required only about forty seconds to run a distance of twenty-five rods. Fifteen rods more were
The views of the court respecting the duty of the motor-man under such circumstances are also stated in Flewelling v. Lewiston & Auburn Horse Railroad Co., supra, as follows: “But great care must also be observed by conductors and drivers, or motor-men, upon the cars, to see that no injury be caused by themselves to persons or teams. Street railroads are granted very great privileges out of the public right, and their treatment of the public must be reasonable in return; so that when a person or a team, through accident or misjudgment or for any cause, be caught in a position of any peril by coming in collision or close contact with the cars, it is the duty of those who are managing the cars to use all possible effort, by slackening the speed of a car or stopping it altogether, in order to avoid an injury.” ■ ,
It is undoubtedly true that the plaintiff’s prior negligence in a certain sense contributed to produce the accident; that is to say, if the plaintiff had not stopped to talk in the street, with his team
Under instructions which must, be presumed to have been adequate and appropriate in the case before the court, the jury evidently reached the conclusion that by the exercise of reasonable and ordinary care and caution on his part, the motor-man might have.so managed his car as to avoid a collision with the plaintiff’s team. It was peculiarly a question of fact within the province of the jury to settle, and this court does not feel justified in setting aside their verdict. Motion overruled.