Giberson v. Bangor & Aroostook Railroad, 89 Me. 337

Giberson v. Bangor & Aroostook Railroad

89 Me. 337 | Me. | 1896

Emery, J.

Grade crossings of railroads with common roads are places of obvious peril to the traveler upon the common road. The exigencies of modern railroad traffic require the running of frequent trains of heavy cars at considerable speed. If every railroad train or locomotive was to stop or even materially reduce its speed at every country road-crossing, the great benefit of railroads to the public, viz., quickness and economy of transportation, would be greatly lessened if not destroyed.

The traveler upon the common road is not seriously inconvenienced by the railroad crossings. Whether on foot or driving horses he can easily stop or slacken his pace at any point, and easily renew his progress without appreciable loss of time or power. If he be alert and watchful for the passing train, he can usually check his own speed quickly enough to avoid a collision.

The obvious peril of collision at such crossings requires that the traveler upon the common road, when approaching a railroad crossing, should exercise a degree of care commensurate with the peril. He should bear in mind that he is approaching a railroad crossing and that a train or locomotive may also at the same time be approaching the same crossing at great speed. He should never assume that the railroad track or crossing is clear. He should apprehend the danger, and use every reasonable precaution to ascertain surely whether a train or locomotive is near. He should, *344when near or at the crossing, look and listen, — not simply with physical eyes and ears but with alert and intent mind, — that he may actually see or hear if a train or locomotive be approaching, tie should not venture upon the track or crossing until it is made reasonably plain that he can go over without risk of collision.

Persons operating the railroad upon their part are required to give suitable signals or warnings as their trains approach crossings over common roads, and their omission to do so may subject them to penalties and damages; — but the traveler upon the common road must not trust his safety entirely to the care and thoughtfulness of the railroad men. He must still exercise due care upon his own part, — must still use his own faculties to apprehend and avoid the danger. If he fail to do so and thereby plunge into a danger that he could have avoided by such care and precaution, he has no legal redress against others who were only negligent with himself. In all actions for negligence like this,’ the plaintiff must affirmatively prove his own freedom from contributory negligence. The mere collision is prima facie evidence of the plaintiff’s want of due care.

The foregoing is only an iteration of what has been repeatedly stated in varying language, in several well considered opinions of this court, to be the law of this State both upon reason and authority. Chase v. Railroad, 78 Maine, 34; Allen v. Railroad, 82 Maine, 111; Smith v. Railroad, 87 Maine, 339; Romeo v. Railroad, 87 Maine, 640. The opinions of the court in Hooper v. Railroad, 81 Maine, 260, and in York v. Railroad, 84 Maine, 117, do not modify the above statement of the traveler’s duty. In those cases the railroad men were guilty of something more than a mere omission to give warnings. They were not merely silent, thus inciting the traveler to more exertion to see or hear. By their conduct they broke silence and affirmatively assured the traveler that no train was then approaching. They caused him to take no further care.

It remains to apply these principles to the undisputed facts in the case now before us: — On February 27, 1895, the defendant company was operating its newly constructed and unballasted railroad through the town of Mars Hill in Aroostook County. In *345that town, at that time, was a grade crossing where the railroad crossed a common road at a somewhat acute angle, the railroad running northwest and southeast and the common road running-northeast and southwest. From the crossing southeasterly to the Mars Hill railroad station the distance was nearly 1200 feet with a slightly descending grade. The common road to the northeast of the crossing for some distance was nearly level, but at about twenty-five feet distant from the crossing there was a rise of a few feet in grade to the crossing itself.

On the morning of the day named, a train of ten loaded freight cars with a saloon car in the rear passed southeasterly down the track past this crossing to the Mars Hill station nearly 1200 feet below. After a very brief stop there this train was backed up toward and past this crossing again in order to get out some other freight cars from a siding. There was the usual conflict of evidence as to the speed of the train in backing up, and as to whether the locomotive whistle or bell was sounded as a warning.

About the same time, the plaintiff’s intestate, Mr. Giberson, who knew this crossing, was driving a pair of horses in a sled down the common road from the northeast toward the crossing. Hiding on the sled with him were two other men sitting opposite each other on the side boards just behind Mr. Giberson, who was sitting on the cross-seat. He trotted his horses to about the foot of the rise near the crossing where he slowed down to a walk, and kept on at that pace without stopping until the horses came upon the crossing. At this moment the saloon car, now the forward car of the backing train, also reached the crossing. The horses then sprang ahead and to the right, away from the car, but too late; and the car struck the sled, inflicting severe injuries upon Mr. Giberson from which he died on the same day.

According to the legal principles, now so often stated that they must be familiar, it was incumbent on the plaintiff to affirmatively prove that her intestate, Mr. Giberson, when approaching this crossing, was in the exercise of a due degree of care commensurate with the well-known dangers likely to exist at a railroad crossing. It is urged that he was excused from not seeing the approaching train *346by reason of buildings and bigb banks of snow obstructing tbe vision. It does not appear that he made any effort to surmount those obstacles even by rising from his seat and standing up to look over or between them. It is urged, again, that he was excused from not hearing the train for the reason that no whistle, or bell, or other alarm was sounded. It does not appear that he listened for any sounds of a train. The mere rumbling of the eleven cars, ten of .them loaded, on the unballasted track on that still winter morning made sufficient concussion and noise to shake the windows in a building some two hundred feet above the crossing, and to arouse the attention of the occupant of the building and bring him out to see the train. The plaintiff’s intestate, some two hundred feet nearer the train, undoubtedly could have heard this rumble had he been listening with his mind alert and intent upon the danger. There is no suggestion that any wind carried away the sound.

Only one of the men on the sled with Mr. Giberson was a witness at the trial. He testified that none of them saw or heard the train, but he does not testify that any, even the simplest, effort was made to get a view of the track over or around the obstacles, or that either of them listened for any whistle, bell, rumble or any other sound of a train. From his testimony it appears that Mr. Giberson and his two companions kept steadily on without stopping and seemingly, at least, without any consideration or thought upon the chance of a train passing. None of the evidence shows that he was mindful of the danger to be apprehended by the traveler at a railroad crossing, or mindful of the precautions which ought to be taken by the traveler to avoid that danger.

Much as we regret the great misfortune of the plaintiff and her intestate, it is our plain duty to declare that upon .the evidence adduced she has no legal right of action.

Motion sustained.