89 Me. 194 | Me. | 1896
Tbe writ and declaration, and tbe judge’s charge are brought up on report, but none of the testimony. An exception was taken to a ruling which may be very well understood from an examination of the charge. The action is to recover damages for an injury sustained by the plaintiff from an accident occurring to him, by being thrown from his sleigh when crossing the track of the street railroad in Lewiston. There are two specifications in the declaration alleging negligence against the railroad. One is for leaving a heap of snow on the side of the track by which the sleigh was upset, thereby causing plaintiff’s injury. We need not, however, dwell on this branch of the case, more than to state it as incidental to the second specification, inasmuch as no rulings in this part of the charge are claimed to be in any way objectionable.
On this point of the case the presiding judge, in his charge to the jury, made these observations: “That, then, is the second question of fact. The plaintiff says that, at the point of this corner, where the plaintiff crossed over, the rails of the defendant company had been either put or left by them two or three inches above the surface of the street, and that that height was a dangerous height, .and made the crossing by a careful man dangerous, and, in fact, did cause a careful man a severe injury as he crossed. And the defendant answers that, first, by saying it is not true, and the rails weren’t anywhere near so high, that they were not so high as to make it at all dangerous for a careful man to cross the street; and they say further — and that is a point made to me as Judge — they say further that, no matter whether their rails were above or below the street, that if they put their rails upon the grade in the first place, that they are protected, and that the fault in the difference in the elevation of the rails and the street is the fault of the city of Lewiston. I will only trouble you with the fact, gentlemen. Now I am going to give you this rule : The railroad company, under the evidence in this case, wasn’t bound as a whole to keep that street in repair; they were not bound to keep it in repair as between the rails even. They hadn’t assumed the duty of keeping the street, or any part of it, in repair, — that duty was left upon the city of Lewiston, so far as the repairs of the street were concerned. But I say further to you, that the railroad company,
Exceptions are taken to what the judge said about there being no responsibility upon the defendant railroad to keep the street in repair so far as the space between its rails is concerned. In the first place, it strikes us very forcibly that the remarks of the judge on this point embrace an abstract proposition merely, which if possibly in any aspect material, became entirely immaterial by the subsequent instruction that, at all events, the railroad company were under obligation to properly lay their rails, and to so maintain them that the passage over them at the crossings shall be safe and convenient for travelers, even if it became necessary to elevate or depress the rails from time to time in order to insure such a situation.
But, should the ruling objected to be considered as prejudicial to the plaintiff’s cause, if it be a wrong ruling, then we do not hesitate to go farther and declare the ruling, in its connection with the other parts of the charge, to have been right. The city, in the absence of municipal regulation or any agreement between the parties, does not surrender its supervision and control of its streets,
The plaintiff’s counsel urges the propriety of imposing upon the railroad company the duty of keeping the space between rails in repair so as to counteract the ordinary wear and tear of the. road produced by the feet of horses constantly passing over it. But other horses besides those of the railroad company pass over and upon the railroad tracks, especially where the chance for passing is narrow and the teams engaged in passing are numerous. And at crossings the track is usually much more trodden by horses driven by travelers than by railroad horses. There is no doubt that a railroad company would have the right to keep its track in repair so as to prevent depreciation by wear and tear, the city not opposing, and to keep the earth about its rails firm and secure, and the right of maintaining approaches to its rails at crossings so as to let teams pass over them easily; and as before inculcated in this
The plaintiff contends that a city ordinance of Lewiston aids his contention. We think it does not. It reads thus: “The city reserve the right to make changes in the grade of streets and to make all necessary repairs or changes in water, gas or sewer mains or streets, and assume no liabilities for any damage caused by delay or interruption of cars from any cause whatever,' but will relay any track disturbed by alteration or repairs of any gas, water or sewer pipes or mains.”
Llxceptions overruled.