67 Me. 100 | Me. | 1877
Lead Opinion
This case comes before us upon a demurrer to the plaintiff’s declaration. There are, then, no facts in dispute. The facts being admitted, it becomes the duty of the court to apply the law to the facts. It was held by the supreme court oí Pennsylvania, in Hoag v. Lake Shore & Michigan Southern R. R. Co., 1 Reporter, 89, that, where facts are admitted or established without conflict, the court may declare, as a matter of law, whether such facts do or do not amount to negligence.
The plaintiff being in a narrow fenced lane leading to the crossing over the defendants’ railroad, and distant about two and half rods from its track, and perceiving the defendants’ train forty rods from but approaching the crossing, he being distant seven rods from the same attempted to cross the track before the train should reach it. His attempt "was unsuccessful and he was injured. Hence this suit.
It is negligence to attempt crossing the track of a railroad without looking to see if the cars are approaching. If the traveler does not look and his omission contributes to his injury, he is guilty-of such negligence as will bar his recovery, notwithstanding the negligence of those in charge in omitting to sound the whistle or ring the bell. Gorton v. Erie Railway, 45 N. Y. 660. Allyn v. Boston & Albany Railroad, 105 Mass. 77. Wheelock v. Boston & Albany Railroad, 105 Mass. 203. Butterfield v. Western Railroad, 10 Allen, 532. But it is greater negligence for one seeing the cars approaching at ordinary speed to make the attempt. The plaintiff was protected by the fences. He had nothing to do' but to rein in his horse. He saw the danger and hastened to incur it. The excuse given for the foolhardy attempt
■ He assumed the risk of an attempt which put in peril the lives of passengers, as well as his own life. His own rash act contributed to the injury, and in such case a party cannot recover. The facts being undisputed the question of contributory negligence is one of law. Morrison v. Erie Railway, 56 N. Y. 302. Nichols v. Great Western Railway, 27 Canada, Q. B. 382.
It is not enoúgh to show negligence on the part of the defendants, if the plaintiff’s negligence contributed to the injury he cannot recover. But here it is difficult to perceive wherein the negligence of the defendants is shown.
The alleged negligences of the defendants are, (1) that no warning was given of the approach of the train. But it is not pretended that the crossing was one where the statute requires a bell to be rung. And if it was, the omission to ring did not contribute to the injury, inasmuch as the plaintiff saw the approaching train. Vision was better than hearing. (2. ) It is stated as a matter of complaint that the defendants were running at unusual speed. Trains must make connections. They are not limited to any rate of speed. The court cannot say as matter of law that running with more or less than the average or usual speed is negligence. McKonkey v. Corning &c. Railroad, 40 Iowa, 205. The hypothesis of the plaintiff’s writ, is that hastening and slacking speed is of itself negligence.
The plaintiff does not allege in his writ that the servants of the defendants saw him in sufficient season to have avoided the collision ; and if they did not, they were not required to slacken speed without any apparently existing cause therefor.
The remarks of Hagarty, J., in Nichols v. Great W. Railway, 27 Canada, 382, 395, in a case almost precisely like the one under
Demurrer sustained.
Dissenting Opinion
dissenting. This case is presented to us upon a demurrer to the declaration filed at the first term, and the decision is to be the same and have the same effect as if the ease were presented on exceptions.
The demurrer admits the facts alleged in the declaration, and the court are to determine from them, as pleaded, whether the plaintiff, as matter of law, is entitled to maintain this action. To maintain the suit, it is incumbent upon the plaintiff to allege due care on his part and negligence by the defendants. It is not pretended by the learned counsel for the defendants that the writ does not allege in general terms due care on the part of the plaintiff, but he argues that the specific allegations upon this point show such a state of facts as to authorize the court to declare, as matter of law, that there was contributory negligence on his part.
In addition to the general allegations of due care by the plaintiff, the declaration sets forth, in substance, that the plaintiff with a horse and team wagon was passing along an open way, crossed by the railroad upon the same level, which way people were accustomed to travel, and which was inclosed with fences on each side, and so narrow that teams could not be turned around without great difficulty, and that he had reached a point about seven rods
It is argued in defense, and held by a majority of my brethren, that the facts being admitted by the demurrer, the question whether the plaintiff was in the exercise of ordinary care, is one of law and not of fact. I cannot assent to this proposition, as an absol ute rule of law. Waiving the question of possible cases, I think the better rule, and that which accords with principle and authority is that, even when the facts are undisputed, the question of ordinary care is in general a mixed question of law and fact to be submitted to the jury under proper instruction. This is the law as administered in the early cases in this state, and recently affirmed in Webb v. Portland & Kennebec Railroad Co, 57 Maine, 117, 131.
I am aware that the court in Massachusetts, in certain railroad cases, have inclined to the doctrine contended for by the counsel for the defendants, but that line of decisions has not been followed by the court in this state, and is not in accordance with the recent decisions in the English courts, the courts in Pennsylvania, Michigan and other states, as well as the supreme court of the United States. Patterson v. Wallace, 28 Eng. L. & Eq. 48. Penn. Canal Co. v. Bentley, 66 Pa. St. 30.
In Detroit & Milwaukee Railroad v. Van Steinburg, 17 Mich. 99, the court lay down the rule, as deduced from an extended analysis of the cases, that where the facts are disputed, or when
This seems to be the view the supreme court of the United States took of this question in Railroad v. Stout, 17 Wall. 657. After theorizing in regard to extreme possible cases, the court say: “But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these intermediate cases that the opposite rule prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible impartial man would infer that proper care hadjnot been used, and that negligence existed; another man equally reasonable and impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education, and men of little education, men of learning, and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than one man does, that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge.”
In West Chester etc. Railroad v. McElwee, 67 Pa. St. 311, 315, the court say : “The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary care. In such cases, the measure of duty is not fixed but variable; under some circumstances a higher degree of care is demanded than under others, and when the standard shifts with the circumstances of the case, it is in its very nature, incapable of being determined, as a matter of law, and must be submitted to the jury to determine what it is and
In passing from the law to the allegations in the writ it becomes obvious that this is not one of “the extreme cases,” referred to by the court in Railroad v. Stout, ante, whore the court would bo authorized to predicate contributory negligence, as matter of law, upon the facts admitted^ but rather a case where, in the language of the court, in Detroit & Milwaukee Railroad, v. Van Steinburg, ante, “different minds might honestly draw different conclusions from the admitted facts,” in which case the question must be determined by the jury. The plaintiff'was lawfully upon the road, and had a legal right to drive across the railroad track.
Upon the question of presence of mind, so to speak, in a sudden emergency, Wharton in his law of Negligence, § 30é, uses this language : “As a rule, therefore, we may say that a person is not chargeable with contributory negligence, who, when unwarned peril comes on him, suddenly acts wildly and madly. For persons in great peril are not required to exercise all the presence of mind and care of a prudent, careful man; the law makes allowances for and leaves the circumstances of their conduct to the jury.” If to the considerations to which I have adverted, we add the want of evidence, not necessary to be alleged in the declaration, but, nevertheless, material to the issue, such as the plaintiff’s age, weight and ability for quick decision and prompt action, I think it is apparent that the case is a proper one to be submitted to a jury. The situation required of the plaintiff a rapid survey of the whole field of danger, a speedy deduction of inferences, expert calculation, and instant choice of chances; and although we can never know what would have been the result if he had adopted the alternative of attempting to stop his team, or turn it around, yet it seems to me that it would be a reproach upon the law to hold him guilty of contributory negligence, as matter of law, for adopting the alternative that actually carried him within a single second of safety.
Nor do I think the other position taken by the counsel for the
The three fold negligence of the defendants is distinctly, and we think sufficiently stated, as the cause of the plaintiff’s disaster. Whether those allegations amount to negligence, is a mixed ques tion of law and fact to be submitted to the jury with proper instructions in view of all the evidence in the case. Whether due care required the conductors of the train to run it at a moderate rate of speed, when approaching the crossing, or to give warning of such approach, or to slacken its speed on that occasion, depends upon the usual amount of travel over the crossing, the opportunity for seeing the plaintiff, the provisions of the statute, if any, upon that subject and all the circumstances of the situation. From the admitted facts in this case different men of equal intelligence and prudence might honestly draw different inferences, and form different conclusions. One man might conclude that due care required of the . defendants the use of one, at least, or all of these precautions; another,
Demurrer overruled, declaration adjudged good, action to stand for trial.