113 Me. 218 | Me. | 1915
While the plaintiff was attempting to drive his team over a grade crossing on Railroad Street in the City of Bangor he was struck by an engine of the defendant and somewhat injured. The ground alleged in his writ for holding the defendant legally responsible for his injuries is that the flagman stationed at the crossing gave him the signal to go forward, and while obeying the invitation he. was hit by an engine run in a negligent and reckless manner. Had these allegations been proved the verdict rendered in the plaintiff’s favor would have been justified; but the evidence falls far short of substantiating these claims or of proving any negligence on the part of the defendant, and on the contrary establishes the plaintiff’s own want of due care, as the proximate cause of the injury.
The situation was as follows: Front Street runs parallel with the tracks of the defendant company and is located between the tracks and the Penobscot River. Railroad Street leads from Front Street across the tracks at grade to Pleasant Street, and is situated between the old and the new passenger stations. At this crossing were two main lines of tracks, the east bound and the -west bound wdth certain yard tracks branching off. The plaintiff, the driver of a double team with a dump cart, was an employe of the city and had been collecting rubbish on Front Street. His destination was the city dump, to reach which it was necessary for him to drive over Railroad Street crossing. When he reached the crossing it was blocked by a shifting engine with four cars on the east bound track, next to Front Street. He stopped and waited, as he says, probably two minutes, until the
Under this state of facts, the truth of which is fully established by the evidence, no legal liability for this accident was imposed upon the defendant. It had performed its legal duty and was guilty of no breach, either in the way of omission or commission. It had provided a flagman at this crossing, who was at his post and performing his duty. The engine which struck the team had brought in the afternoon passenger train from the west and, detached, was on its way to the engine house situated west of the old passenger station. It was equipped with an automatic ah’ bell which was constantly ringing. Its speed was eight or ten miles an hour, which could not be deemed excessive, when a flagman was at the crossing. As soon as the engineer discovered the signal to stop given by the flagman he put on the emergency brake but it was too late to avoid the collision. Clearly the defendant ivas not negligent and the last chance doctrine does not apply.
On the other hand the lack of due care on the part of the plaintiff is equally apparent. He had lived in Bangor twenty-five years and was thoroughly familiar with the crossing and its surroundings. He knew there were two main lines of track. When the first line was cleared by the moving of the shifting train he took no precaution to ascertain if any other engine or train was coming on the other track. This was inexcusable. If, as the counsel for the plaintiff contends, the shifting train in its new position prevented his seeing the engine approaching on the other line from the east, that fact did not excuse him for rushing into possible danger but on the contrary rendered
In addition to this it is proved that the-plaintiff was warned by others as well as by the flagman. The conductor of the shifting train, seeing the engine coming, dropped off the rear car, stepped close to the team, swung his arms and shouted to the plaintiff to stop; but the latter disregarded his warnings, whipped up his horses and started across. The brakeman on the same train, who was at a distance of eighty-six feet to the west, also shouted to the plaintiff to stop, but his cries also were unheeded. Evidently the plaintiff was either reckless or thoughtless, more likely the latter, but either is fatal to his recovery. He had perhaps become somewhat impatient at being obliged to wait the two or three minutes for the shifting train w'hich was blocking the crossing on the first track and when he started he w'as oblivious to everything. The flagman testifies that the plaintiff paid no attention to his swinging of the flag nor to his shouting, “never looked at me at all, no more than I was not there.” Such conduct on the part of the plaintiff bars his recovery under the fixed, familiar and wholesome rules of law in this State applicable to the duty of travelers at grade crossings of steam railroads. Giberson v. B. & A. R. R. Co., 89 Maine, 337; Blumenthal v. B. & M. R. R., 97 Maine, 255; Lewis v. Washington Co. R. R. Co., 97 Maine, 340; McCarthy v. B. & R. R. Co., 112 Maine, 1; Goodwin v. Maine Central R. R. Co., 113 Maine. The verdict is so manifestly wrong that it cannot be allowed to stand.
Motion sustained.
Verdict set aside.