Romeo v. Boston & Maine Railroad

| Me. | May 10, 1895

Wisavell, J.

This case comes to the law court upon a report of the plaintiff’s testimony with the stipulation that, if upon this testimony the action can be maintained, it shall be sent back for-trial, otherwise a nonsuit is to be ordered.

About nine o’clock on the evening of July 17th, last, the plaintiff, a young woman of nineteen years of age, while Avalkingon Main street, in the city of Biddeford, across the railroad tracks of the defendant corporation, was struck by a locomotive attached to a regular train on that road, and sustained certain injuries.

In order for her to recover for these injuries, it is incumbent upon her to prove negligence upon the part of the defendant corporation, and that no negligence upon her part contributed to the accident.

It is admitted that this crossing was near the compact part of the city of Biddeford, consequently the running of the train across this street at a greater speed than six miles an hour,, unless there was either a gate or a flagman at the crossing,, would be in violation of chap. 377, Laws of 1885, and in ancl of itself negligence. Although gates were maintained at this-crossing, upon the night of the accident they were in temporary disuse because of Avork being done at that particular place, and! were left open. And although a flagman was stationed at the crossing, a jury might be authorized to come to the conclusion from the evidence before us, that at the time and just before this-train passed, he was not in a position to do the duty required and expected of him in warning travelers of an approaching train. Witnesses for the plaintiff' have estimated the speed at which this train was running at from thirty to thirty-five miles an hour. So that as to the first proposition, Avhich is necessary for the plaintiff to prove, we think there was sufficient evidence to entitle her to go to the jury. .

But it is equally as important and necessary that the plaintiff' should prove that there ivas no negligence upon her part which contributed to the result. In our opinion she has not only failed to do this but has shoAvn an entire absence of all care.

A railroad track across a street or highway is a recognized place of danger. No person should cross it without taking such precautions as experience has shown are necessary in order to do so with safety. The standard of care required is such as ordinarily careful and prudent persons would, exercise, having in view all the known dangers of the situation. This court, as well as the courts of most other states, has gone further than to establish a general standard of care required of a traveler in crossing a railroad track, and has laid down the. rule that it is negligence per se for a person to cross a railroad track without first looking and listening for a coming train. Chase v. Me. Cent. Railroad Co. 78 Maine, 346.

The plaintiff was in the full possession of her senses of sight and hearing, and yet she says herself that she neither looked nor listened for an approaching train. If she had exercised the slightest care and had listened for a single moment, the noise of the rapidly approaching train would have given her ample warning ; or, if she had looked before she had arrived at the track, she could have seen the train for a great distance, as she testifies upon cross-examination.

While the testimony gives no distances, the plan which is made a part of the case shows that while the plaintiff was walking along Main street toward the track, for a distance of at least eighty feet before coming to the track upon which this train was running, she had a plain view of the track in the direction from which it was coming for a great distance, obstructed only by a small gate-house which could only.have shut off the view of a small portion of the track at any one time.

But the plaintiff’s counsel, while admitting the.general and well-established rule as to the amount of care required of a traveler in crossing a railroad track, and the particular duty in such a case of looking and listening, contends that the open gates at this crossing, where gates had long been maintained, relieved the plaintiff from the exercise of the care which would otherwise have been required. State v. B. & M. Railroad, 80 Maine, 430, and Hooper v. B. & M. Railroad, 81 Maine, 260. are relied upon in support of this proposition.

It is undoubtedly true that the fact of open gates is a circumstance which the traveler may very properly take into consideration; a person of ordinary care would do so ,to some extent, but it does not relieve the traveler from all care. As was said by Chief Justice Peters in State v. Railroad, supra, " while the neglect of the company to perform its duties does not excuse the traveler in a neglect of the duties and degree of care which the law imposes on him, still, in making his calculations for crossing a railroad track safely, he is often justified in placing some reliance on a supposition that the company will perform the obligation resting on it, where there is no indication that it will do the contrary.”

Again it is said in that opinion : " Of course, full reliance cannot always be placed on an expectation that a railroad company will perform its duties, when there is any temptation to neglect them, because experience teaches us that it would not be practicable to do so. But such a,n expectation has some weight in the calculation of chances, greater or less according to the circumstances.”

In both of the cases cited, the travelers were driving in a carriage, the view of the track was obstructed and the court held that a jury might be authorized in finding that the person injured, in each case, did look and listen. Here the plaintiff was walking, the view of the track was generally unobstructed, and the plaintiff testifies that she neither looked nor listened.

The weight that should be given to the negligence of a railroad compan}', in not properly operating its gates, depends to a very marked degree upon the circumstances of each case. A person approaching a railroad-crossing, in a carriage, with a view of the track obstructed, might, in the exercise of ordinary care, be led to rely upon the upright arms of a gate until it was too late to control his horse or to turn him aside ; but it is difficult to see how a person walking, with a sufficiently plain view of the track, could be thus misled to such an extent as to come into collision with a rapidly moving train.

It is further contended in behalf of the plaintiff that this is a question which should be passed upon by a jury. Ordinarily the question of clue care and of negligence is for the jury. This is necessarily so when the facts bearing.upon these questions are in dispute,.or even when the facts are undisputed and intelligent and'fair-minded men may reasonably differ in their conclusions. But it is not true where the facts are undisputed, and there is no evidence, or the evidence is too slight or trifling, to be considered by a jury. In such cases it is not only proper but it is the duty of the court to order a nonsuit. Elwell v. Hacker, 86 Maine, 416; Railroad Co. v. Hefferan, N. J. L. Atlantic Reporter, Vol. 30, p. 578.

In this case a jury would be authorized to come to only one conclusion, that the plaintiff was guilty of negligence which contributed to the accident.

Plaintiff nonsuit.