106 Me. 450 | Me. | 1910
The defendant Wheeler was the locomotive engineer in charge of the locomotive drawing the regular morning west bound passenger train on the Washington County Railroad from Calais to Washington Junction on Dec. 25, 1908. A little
It is not known when, why or how Mr. Leighton came to be lying prostrate and motionless on the track at that time, about 10.35 A. M., the time for the regular passenger train from the east to pass that point. No one saw him there until he was seen by the defendant engineer. Indeed, no one saw the incident of his being run over except the engineer and fireman of the locomotive. Their account of what occurred is the only one we have, and must be taken as true except so far as it is contradicted or too improbable for belief. The engineer’s account is substantially as follows:— He whistled as usual at the eastern whistling post for the Eastbrook crossing, the train being on time and running at its usual speed at that place thirty-five miles an hour. On nearing the east switch and when within 200 or 300 feet of it he saw for the first time a dark object on the track on the left hand side and near the switch. At the first glance he thought it was where the section men had been digging out ties, but at a second glance within a "fraction of a second,” he sounded the alarm whistle, shut off steam, applied the emergency brakes, and opened the sand valves, these being all he could do to stop the train. The fireman testified that after the whistling for the crossing, he was down fixing the fires, when he heard the alarm whistle sounded, the emergency brakes applied, etc., and immediately straightened up and looking out of his window saw a dark object on the track about 100 yards ahead, — the train running at the usual speed of 35 miles an hour.
Passing other questions, we come directly to the question of the defendant’s negligence. There was no evidence that he failed to
As to the first contention, there was evidence that had the engineer been on the lookout for persons or bodies on the track ahead he could have seen the body of Mr. Leighton more than a thousand feet away assuming it was then there, and by then applying the emergency brakes, etc., he could have stopped the train short of the body. This evidence raises the question whether the engineer was guilty of negligence in not being on the lookout for, and discovering, the body of Mr. Leighton that thousand feet or more away.
Whatever the defendant’s negligence as to others, he was not negligent as to Mr. Leighton unless he violated some duty owed to him. 23 Am. Eng. Ency. of Law, 732. Granting, as argued, that it is the duty of a locomotive engineer to his employers and all persons on the train to be on the lookout for persons and things on the track, it does not follow that such is his duty to the persons who may be on the track, that it is his duty to them to anticipate their presence there. It does not follow, even, that he must stop or slow his train as soon as he does see a person on the track. That duty does not arise until he has reason to apprehend that such person will not himself seasonably leave the track. Garland v. Maine Central R. R. Co., 85 Maine, 519.
Unquestionably, as the cases cited by the plaintiff hold, under some circumstances and conditions the engineer would be bound to assume the probability that persons might be on the. track ahead, as when he approaches a highway crossing at grade, or passes .through a village or city street. In such cases, of course, it would be his duty to them to keep a lookout. Under other circumstances and conditions he would not be bound to assume any such probability, as when running through a sparsely settled country distant from dwellings and at places where there is no crossing. In such cases it
The foregoing citations sufficiently illustrate the principle that where a locomotive engineer has no reason to anticipate that persons may be on the track in such condition that they cannot leave it before the train reaches them, it is not his duty to them to be on the watch for them, and his failure to see them and their condition as soon as he could had he been on the watch, is not negligence as to them.
It remains to apply the principle to the circumstances and conditions disclosed by the evidence in this case, and to determine whether it was the duty of the defendant engineer to Mr. Leighton to anticipate that he might be lying prostrate, where he was on the track, in a helpless condition, and hence to be on the watch for him. The place was distant from any crossing, not a place where any person would have occasion to be on the track at the time for a regular passenger train to pass. True, Mr. Leighton was not a mere trespasser. He was in the employ of the company and could lawfully be on the track between trains, to make repairs, remove obstructions, etc. In this respect the case is different from many
The engineer had other duties and responsibilities. He could not always be on the lookout to see whether section men were lying helpless on the track. He had the care of his engine and train, was bound to keep watch of the water and steam guages, to note the working of the engine, to keep up its efficiency, to note whether all was well with the running of the train. He could lawfully assume that Mr. Leighton and every other section man would on his part do his duty, would be on the watch for trains, especially regular passenger trains on time, and seasonably leave the track clear for them. He had no reason to anticipate that Mr. Leighton would remain on the track or would be unable to leave it when the train was due. We think it clear, therefore, that he owed Mr. Leighton no duty to keep on the watch for him, to anticipate that he might be helpless on the track. It follows that the defendant’s failure to see Mr. Leighton and his condition as soon as he could had he been on the watch for him is not actionable negligence.
As to the second contention (that the defendant did not as soon as he could, apply the brakes, etc., when he did discover the body) there was evidence that the train went some 300 feet west beyond the east switch before it came to a stand still, indicating, as claimed by the plaintiff, that the train moved 500 or 600 feet from the point where the engineer said he applied the brakes. It also appeared that the grade was "very slightly ascending.” The train consisted of engine, tender, baggage car and two passenger cars. It had rained in the night before and the rails were wet and slippery. The plaintiff’s argument is that the fact that the train ran 300 feet west beyond the east switch shows that the defendant did not apply the brakes, etc., as soon as he saw the object and saw that it might be the body of a man, taking his own story that he saw it when he was some 200 or 300 feet east of the switch.
The defendant stated at the coroner’s inquest that he thought the train ran "the length of ten or twelve cars” after he saw the body and sounded the whistle. He stated at the trial, however, without contradiction that railroad men, in measuring distances by car lengths, always have in mind freight cars, and that he used the phrase in that sense. Measured by freight car lengths, the difference between his estimate given at the inquest and that given at the trial is not enough to invalidate either. The whole matter of distance was one of estimate. . The train was moving rapidly, fifty feet per second, and any estimate, however careful, might-be many feet out of the way. That of the engineer and fireman, accustomed to estimate distances on railroad tracks, is much the more likely to be correct.
Upon the whole evidence we are satisfied the jury would not have-been warranted in finding that the engineer negligently delayed endeavoring to stop the train when he saw the danger.
The consequence of the disaster to Mr. Leighton, his widow and children are very distressing, but the evidence does not show that the defendant is legally responsible for them. The case appears to be one of those where the consequences, however grievous, must, so far as the law is concerned, remain where they fell.
Motion sustained.
Verdict set aside.