The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1874-12-21
CITY AND VICINITY
Superior Court.

I'll AMI ASAAN1 4 c
.l Superior Court.
DECEMBER CIVIL TERM, 1874, sYMoNDs, j., PREslD-
ING.
SATURDAY.-Bella Hardenbrook, admx., VS.. Eas-
tern Railroad Tort for personal injuries sustained
by the plaintiff IS ntestate in being run over by the
defendants locomotive engine and tender on the 10Th
ofApril last upon the main track running through
Commercial street, in this city, from which inJure2
he died in six hours thereafter.
The case showed that near the place of the acci-
dent two side tracks sweeping to the southwest,
one running down on Browns wharf and the other
about two hundred feet westerly, running in the
same direction on to Berlin Mills wharf
At noon, on the goth of April last, Nelson Harden
brook, who was at work on steamboat ABOUT nan
way down Merchants wharf, next easery OF
Browns wharf left his work TO go to his dinner at
bis home in Knghtyille, about one mile distant. He
passed up TO the head of the wharf, turned slightly
to the left crossed the Browns wharftrac and pro-
ceeded on diagonal direction with the main track,
striking IL the switch of the Berlin Mills
track Just before crossing the side track an engine
and tender passed up that track in the direction OF
the Grand Trunk depot. The engine, after running
on to the main track short distance, stopped and
backed towards the Eastern depot reaching this
point where Hardenbrook attempted to cross at the
same time he did In other words the engine and
tender round two sides of the triangle while Har-
denbrook traversed the third side.
The testimony Of the witnesses on the part of the
plaintiff who the accident, was substantially
that Hardehbrook swaswalking towards the main
track back towards the approaching engine; that
just before the engine reached him shout was made
and Hardenbrook, some of the witnesses say
jumped in front ofthe tender. Others that when the
shout given he was already the track and had
sot time to get off; that the tender struck on the
rear right SIDE knocked him down and ran over him.
cutting off his right leg, crushing his right arm and
breaking his left thigh; that the whistle was not
sounded and the bell was not ringing until just as
they struck Hsrdenbrook, and then one witness says
he saw the fireman grab the bell rope.
Witnesses on both sides agree that there pile
of walnut lumber about six feet high between the
Browns wharf track and the main track near their
junction which would more or less obscure Harden
brooks sight of the approaching engine if he had
looked back This engine was yard engine used to
distribute cars along Commercial street and on the
wharves and had but one old-fashioned mandrake
on the t;nder. The plaintiff put in testimony as to
the patent brakes called the brake in on
the Boston s. Maine and the Westinghaus brake in
use on passenger engines defendant road, and the
plaintiffs counsel claimed the company was negli-
gent in not having the best known appliances for
stopping their engine, which was used mainly upon
this crowded thorou ghfare.
The testimony for the defendants showed that at
the time of the accident there six persons in the
cab of the engine of whom contrary to the regu-
latons of the company, was not an employee of the
road tae other five the engineer, fireman, con-
ductor, brakeman and switchman. They had just
finished distributing the train and were on their way
back to the depot. The only one of these five who
AZ haf,r
gineer. He says, 81 was in my proper position on
the right side Of the cab, head out of the window
looking along the track in the direction were
backing. The fireman was on his side ringing the
bell. The other persons were standing The fireman
commenced ringing the bell as soon as the engine
started and continued to ring it until after the acct
dent. We were running about five miles an hour.
Just before got to this pile of lumber 1 observed
this about sixty feet ahead of me walking beside
the track and about four or five feet from it, sup
posed he would keep in that position, but just as we
got about four feet from him he stepped towards the
track. shouted, reversed my engine and pulled out
the throttle. 1t not than two or three Sec
onds after he stepped in before the tender struck.
him. I think brought the engine to a stand-stil
within forty $et.''
The testimo ny of the other occupants of the cab
was that the bell was ringing all the time; that they
were not conyersing with one another and were in
no way interfering with the engineer or fireman.
The defense put in statements of Harden brook to
two employees of the road the effect that the
pans were not blame that he got confused and step
ped the wrong directions several persons who were
waiting ON Hardenbrook at the time these statements
are alleged to have been made say they did not hear
any such statements.
The presiding Judge among other things said to
the ury that the plaintiff in this case appears her
n.o;fxv luniu ofriy Of a e.
ceased person. This is not proceeding to recover
drmaoes the widow or children have sustained, but
to recover damages Nelson Hardenbrook himself
sustained. rHua
After stating the elements Of damage and the
grounds on which the plaintiff claims the defendants
were negligent, he says:
OF course it is entirely mmateral If the defendants
have been guilty of negligence if it did not contribute
the accident If you find the Us were no.
defendants. Ii, on the other hand you are satisfied
by preponderance of evidence that the defendants
were guilty of negligence which continued
to produce the injury, you then come to the
question whether Hardenbrook, whose estate is here
represented was or not guilty 9f f Se nd
that he was, then the plaintiff cannot recover Inc
plaintiff can only recover on the ground that the IN
jury was produced by the negligence OF the DEFEND
This is, perhaps, as important as any question
which arises in the case and needs your careful con-
deIaton and comparison of all the testimony before
You. feel 1t my duty to say to you what has been
repeatedly stated in cases Of this sort. man APP
preaching railroad track Is legally bound to use
his senses of sight AMI hearing before he ventures
upon the track. The track itself is notice to him
that engines and propelled by steam have right
TO the use OF that portion of the street, and it Is care
essness on his part for him to step upon that track
without using his eyes and ears to determine whether
it is safe for him to use it or not In applying TINS
rule to the facts OF this you will take into con-
sideration whatever evidence there is IN regard TO
Instructions there and determine whether or not
Hardenbrook could, by the exercise of reasonable
care have determined the approach Of the engine
If he could and failed to do SO through any fault OF
his. Though any preoccupation Of mind, then he is
not entitled to recover. The charge occupied one
hour and ten minutes ... .Y ....a.
The jury returned verdict for the plaintiff for
$3,456 l9l
w. w. Thomas-Haskell fol- plff
tf ra N. Webb for deft.
George w. johnson Manassah Smith, Action
to recover damages laid at six thousand dollars for
an assault and battery committed on the plaintiff by
the defendant because johnson shot Smiths dog
On trial.
Haskel-N S. LittIefeld for plf.
I.. ID. Webb for deft.