Waldron v. Portland, Saco & Portsmouth Rail Road

Appleton, J. — To entitle the plaintiffs to recover they [424] must prove that the loss they have sustained, occurred without fault on their part and in consequence of the neglect of the defendants. The Tonawanda Rail Road Company v. Munger, 5 Denio, 255; Moore v. Abbott, 33 Maine, 46. The plaintiffs, though guilty of neglect or want of care, may recover if such neglect or want of care was not an efficient and cooperating cause in producing the injury. Kennard v. Burton, 25 Maine, 39. “ If,” says Bronson, J. in Rathbun v. Payne, 19 Wend. 399, “both parties were equally in the wrong, neither can maintain an action against the other. Indeed it has been said that a plaintiff suing for negligence must be wholly without fault.” The exercise of ordinary care on the part of the plaintiffs, and the omission of some duty or the commission of some wrongful act on the part of the defendants, must concur to entitle the plaintiffs to recover. The facts as agreed upon seem to exonerate the defendants for all negligence or want of care at the time of the loss, which is the subject of this suit. The plaintiffs’ cow was crossing their reserved road and could not be seen by the engine man in season to reverse the engine for the purpose of avoiding collision, and it does not appear nor is it alleged that the cars were moving with undue speed or that there was the neglect of any needful precaution on the part of the defendants. The defendants, if responsible, can be charged only in consequence of the non-performance of some previous duty obligatory upon them either by the provisions of some statute or of the common law. The neglect, if any, which must entitle the plaintiff to recover, consists in not keeping up the bars of the plaintiffs’ reserved road at the points where it crosses the rail road. This must be affirmatively shown to have been the neglect of the defendants. The guards and guard fences of the reserved road were suitable and in good repair, but the bars across the plaintiffs’ reserved road were down on each side of the railway, so as to afford no obstruction to the free passage of animals. But for this the loss would never have arisen. When this careless [425] ness occurred and who should be held responsible for it, does not appear from the evidence as reported. The plaintiffs may reasonably be presumed to know at what hours the defendants’ train passes and they should exercise ordinary prudence in selecting the time when they will drive their cattle over. If the plaintiffs or their servants took down the bars at the time the cars were about to pass and chose to leave them down for his cow to pass, without any care on their part, they must be considered as voluntarily assuming the risk thus incurred. If at some previous time they had left them down for the more convenient passage for their horses and cattle to and fro over the brief space occupied by their reserved road, they must abide the consequences. The reservation was for their benefit and in its enjoyment, they should not expose to danger the lives or the property of others. The evidence wholly fails to show whether the plaintiffs have or have not exercised ordinary care. As the evidence does not show how long the bars had been left down, nor when, nor by whom, we cannot say that the defendants have been guilty of any negligence, for we know neither what they have done nor what they have omitted to do. The case finds that the company had built and kept in repair bars across the plaintiffs’ road, on each side of the rail road, and that the road master and those in the employ of the defendants, had been accustomed, whenever they saw the bars down, to put them up in their place. From these facts the plaintiffs ask the Court to infer the existence of a contract by which the defendants have agreed at all times to put up the bars when found down. If the contract had been proved, it does no appear that the defendants or their servants were aware of their position or that from the length of time they had remained down, they were in fault for not knowing their situation and replacing them. But while a corporation may enter into engagements more or less onerous, their existence must be established by satisfactory proof. The evidence adduced wholly fails to satisfy us that any engagements of the nature supposed have been entered into. As remarked by [426] Shaw, C. J., in Bradley v. The Boston & Maine Rail Road, 2 Cush. 537, “ the defendants may have done what they did for the better security of their own trains, or for the safety of their conductors and passengers.” It was held to be the duty of the rail road company in Quimby v. Vermont R. R. Co. 23 Verm. 393, to erect and maintain such fences and cattle guards upon the road as will prevent horses and other animals from passing .them. The statute of 1842, c. 9, § 6, requires every rail road corporation to erect and maintain substantial, legal and sufficient fences on each side of the land taken by them for their rail road, when the same passes through enclosed or improved lands. This duty, as between the corporation and their passengers, exists in full force at all times. If it be the duty of the defendants to maintain and replace the bars, when those for whose use a way is reserved, have taken them down, still it must coexist with the preservation of the entire rights of those for whom the reservation is made. Those who have an easement over the track of a rail road as well as the corporation, if they have rights to assert, have likewise duties to perform. While the plaintiffs may at any time take down the bars of their reserved way, it would be absurd to reqrrire the defendants to have a servant at all times ready to replace them. The plaintiffs must exercise their rights with a due regard to those of the defendants. Trow v. Vermont Central R. R., 6 Law Rep. N. S. 83; March v. N. Y. & E. R. R. 14 Barb. 364. As the evidence leaves it entirely uncertain whether the injury was occasioned by the fault of the plaintifls or the negligence of the defendants, the action cannot be maintained. Plaintiffs nonsuit. Shepley, C. J., and Tenney and Howard, J. J., concurred.