The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1871-12-30
THE PR ESS
SATURDAY MORNING, DEC. 80, 1871.
lFor the Daily Press.]
Legislation Needed for the Protection of
the People.

Legislation Needed for the Protection OF
the People.
The Legislature of Maine has most com.
mendably enacted several laws to be observed
by railroad corporations for the safety of tray-
eiiers ON the cars, and some for those on high
ways crossed, or run upon by such corpora
tions.
nu' railroad companies are largely provided
WIN an escape from all accountability to
each ciass OF travellers, through the rigid en-
Urcement, by our courts, of principle of
law, derived from the iron ancestry of what
is known as the common la,c of the State
and applied to condition of human relations
which had no existence when that la,, was
transferred from England to the States of the
Union.
Few appreciate in how many of their
relations our people are still living under
the laws of Old England. All the stat
utes of Parliament, and all the decisions
of the courts of England, that were in force
at the time of the emigration of our
ancestors to America, and which have
not subsequently been repealed. or modified
by the constitution or laws of the limited
State, or constitution and laws of our own
State, are in force upon our people, precisely
as they were upon the people of all the colo
nies before the Revolution. And occasionally
between suitors, one of these old, hard prin-
ciples of English legislation is exhumed. and
applied in our day, to the great astonishment
of both parties. Then public attention is
attracted to it, and State legislation changes
the rule if expedient, and to that extent
American law, suited to modern times, and
not English law, prevails.
The principle of common law, as recogniz-
ed by the courts of Maine, and to which at
tention of our legislators soon to assemble at
Augusta is invited, grows out of the question
of carelessness or want of due care in case of
injury to an individual from railroad manage
ment. 1t is practically this.
If an injury to an individual, short of death
and it makes no difference how little short
of death-occurs to traveller in the cars, or
connected with the cars and on the premises
of the road company, or to traveller on a
highway crossed or run upon by the railroad
company, and it involves 100 degrees of care
lessness, of which 90 attach to the railroad
company, and only one to the individual, the
latter is not entitled to recover of the road
company one farthing of damages! The Ian
guage of our courts is: ''The law will not
measure the neglect and divide the conse-
quences, or compute the part belonging to
each. The plaintiff having, in such cases,
contributed to produce the injury, in a mate
rial part, cannot recover"
Such is not law in many States of the I'm
ion, though it is in some Others besides Maine.
Exactly the reverse of the ruling of the Court
hereis the ruling of the Court inIllinois, where
the Supreme Court, in the Chicago, Buling-
ton and Quincy r. r. Co. appellants VS..
Payne, Admr. 40 I'LL. r. 400 say:
1t is the established doctrine of this Court,
that although plaintiff may be guilty of
negligence, still the defendant will be held
liable if his negligence is greater than that of
the plaintiff. Where the negligence produc-
ing the injury is equal, or nearly so, or that
of the plaintiffs greater, then he cannot re-
cover. Although he may be guilty of negl-
gence, yet if, that of the defendant is greater,
amounting to gross negligence, he would be
liable. Negligence resulting in injury is
comparative and it is not required that the
plaintiff shall be free from all negligence, or
that he shall exercise the higher possible de-
gree of prudence and caution, to entitle him
to rocovcr, if the defendant -ha- shaSyn to he
guilty of higher degree of negligence" - n
1t would be monstrous to hold, that because
aperson is carci1ss in regard to his safety, he
thereby renders Himself liable to destruction
with impunity, by persons operating rail road
trains. Such dOctrin can never be sane
toned by a Court of Justice ..t..
In Chicago & Alton II. r. Co. Us. Pond
run, 81 Ill., r. 1873, the same Court says: SIT
has long been the settled law of this Court, in
such cases, to compare the negligence of both
parties, and even if the plaintiff is guilty of
negligence which is slight, as compared with
that of the defendant, he may recover. (St.
Louis e Alton r. r. Co. us. Todd, SO M. r.
409.) This case, besides large number of
others in our Court, announces the rule, and
notwithstanding other Courts have adopted
and acted upon different rule, we regard it
as firmly established in this State"
have stated enough to set in contrast the
two rules of the two States named, Maine and
Illinois, in this important question of negi-
gence, as affecting the rights and liabilities of
railroads in their management, and of indi-
! viduals receiving injuries from that manage
ment. And submit to the Legislators elect
in Maine, which of the two rules is most just,
reasonable, and needful for the protection of
the people against the negligence of railroad
managers? Is it the rule adopted by the
Court of Maine derived from principles of the
old English Law, applied to cases involving
| none of the dangers of handling railroads, but
originating long and long before these dam
gers were invented, or possible to occur? Or
is it the rule adopted by the Court of Illinois,
growing out of modern necessities, which ig-
nOres the transfer, from the common law of
any ancient doctrines of exception from liza
bility for wrongs to individuals, to cases orig
mating under circumstances first occurring two
hundred and fifty years later than the trans
fer OF the common law OF England to any
State of this Union?
The people, who constitute the multitude,
whether as railroad passengers, or as travellers
on the highways, are entitled to the first con-
sideration and care of the Legislature; while
railroad corporations, created and paid as
hired servants to the public, are entitled to
only secondary consideration and care, at the
hands of the Legislature. And if am cor
rect in this then additional legislation is need
ed here, to reverse the doctrines of our courts,
derived from the common law of England on
this question of negligence, and to adopt the
more rational and just doctrines of the courts
of Illinois.
What makes the need OF additional legiSla-
ton for mitigating the law in this class Of
cases, for the protection of the people, more
obvious-if any consideration can make il
more obvious than the naked statement of il
is, the exercise by the court, after uerdict
rendered in favor of an injured party, of the
power, also derived from the iron ancestry O
our common law, of setting aside the verdict
of the jury upon this question of negligence,
which is purely question of fact, unless sucf
verdict conforms to the courts view of the
evidence upon that question Of fact.
The Court instructs the Jury ''every time
that the entire question of carelessness IL
both of the contestant parties, is a question o
fact for the jury to decide upon their oath
and consciences, and
1st Whether the defendant Road wa
guilty of carelessness in causing the injur,
complained of? f.o
2ndly. Whether the pltf in any degree
contributed by his carelessness to that in
jury?
Sdly. If they find the first.inquiry must b
answered in the affirmative, and the last il
the negative, it is their duty to return ver
dict for the plaintiff.
4thly If they find each party guilty Q
negligence, no matter how much more, rela
tively, the one might be careless, than tn
other, they must find verdict against til
pitt.
f In such cases, the language of the Court
to the Jury:-''YOu are constituted THE ES
elusive JUDGES OF THE FACTS in this cas-
what they show, and what they are! -
''The facts are before you, the evidence is |
the cause; what the LEGITIMATE results
: this evidence are, YOU MUST DETERMINE