Hooper v. Boston & Maine Railroad

Walton, J. This is an action to recover damages for injuries received by the plaintiff’s husband at one of the railroad crossings in the city of Biddel’ord; and for which the plaintiff has obtained a verdict for $4650. The negligence of the defendant company [266] is not controverted. It is conceded that at the time of the accident it was running one of its night trains at a rate of speed more than four times that allowed by law, unless it closed its gates or kept a flagman at the crossing: and it did neither. The only question is whether the evidence submitted to the jury was sufficient to justify them in' finding that the plaintiff’s husband at the time of receiving the injuries was in the exercise of ordinary care. We think it was. We think the evidence was sufficient to justify the jury in finding that at the time of the accident the deceased was deceived and misled by the negligence of the railroad company in leaving their gates open at a time when they should have been closed. The facts, briefly stated, are these: The plaintiff’s husband, and two other men were riding together in a wagon. It was about ten o’clock in the evening of Nov. 26, 1886. As they approached the railroad crossing they heard the sound of a locomotive whistle. Their view was obstructed and they could not see the approaching train. And at that point the tracks of the Boston & Maine & Eastern Railroads run quite near together. This left them in doubt as to which road the train was on. And in this state of uncertainty, they approached the crossing, — slowly and silently, and probably both looking and listening, — and finding the gates open, which they had been accustomed to see closed when a train was about to pass, they became satisfied that the train was on the other road, or so far away as not to be a source of danger, and they attempted to cross, when the night Pullman train rushed down upon them, and one of the men was instantly killed, another hurt, and the plaintiff’s husband so injured that he died in half an hour. The open gates were the direct and efficient cause of this accident. It was not the failure of the deceased to look and listen. We have no doubt that he and his companions did both look and listen; for they heard the whistle and they saw the open gates. We are satisfied that they did not see the approaching train, and for the reason that their view was so obstructed that they could not see it. If the gates had been seasonably closed, as they should have been, this accident would not — -it could not — have happened. [267] Tbe rate of speed at which the train was moving, made it the duty of the railroad company to close their gates or have a flagman at the crossing. The law forbids the running of trains across a highway, near the compact part of a town, at a rate of speed greater than six miles an hour, unless gates or flagmen are maintained. Act, 1885, c. 877. This train was running at the rate of twenty-five miles an hour. The gates had been used during filie day, and until a train which was due at a little before eight o’clock in the evening, had passed. The gate tender then went home leaving the gates open. In his absence this night train passed. He returned at a little past ten o’clock, and found the team smashed, the horse and one man dead, another man hurt, and the plaintiff’s husband dying, — the result of negligence in omitting to perform a plain statutory duty. The statute cited does not compel railroads to erect gates at their crossings. They can reduce the speed of their trains to six miles an hour, and then neither flagmen nor gates will be necessary. But when they run their trains as this train was run, the law requires them to maintain gates or keep flagmen at the crossings. And when they elect to erect gates, clearly the gates must be tended, or they become false signals and lead the traveler into the very danger against which they were intended to guard him. Open gates invite passing. Closed gates forbid passing. And by these signals thousands of travelers are governed every day. And as gatemen usually perform their duties with fidelity — as much so as conductors, or engineers, or switchmen — we think it would be a wrrong to them as well as to travelers to hold that every one who trusts them is guilty of a want of ordinary care. It would not be true. Ordinarily, the great mass of the community do trust them. And so far as we can discover, it has never been held by any court tliat to trust them is a want of ordinary care. The contrary has been held in many cases. A collision at a railroad crossing is prima facie evidence of negligence on the part of the traveler. But the inference of negligence may be repelled. And we think that an open gate and an obstructed view may be sufficient for tins purpose. Certainly, they are sufficient to bring the question within the province of the jury to [268] decide, and prevent a nonsuit, or the setting aside of the verdict, if the jury find in favor of the traveler. But as tins precise question has already been considered by the court, in an action relating to this same accident; and the circumstances attending it, and the authorities bearing upon the questions of law involved in it, very carefully and fully examined in an opinion by the Chief Justice, we shall not pursue our inquiries further. It is sufficient to say, in conclusion, that we are not satisfied that the verdict is wrong, — certainly not so clearly wrong as to require us to set it aside and grant a new trial, See opinion of the court, above referred to, in State v. Boston & Maine Railroad, 80 Maine, 440, (6 N. E. R. 777). Motion overruled. Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.