The Portland daily press., 1884-05-21
U. s. Circuit Court.


TUE6DAY.-The court came In by adjournment
from May IL, to hear the argument of motion
filed on that day by defendants counsel
for new trial in the action of Wealthy
Wentworth, administratrix VS.. the Grand
Trunk Railway Company of Canada, wherein suit
had been brought for $4,000 damages, and a
verdict for 81 900 had been rendered against the
company for fatal injury to Capt Ephraim Went
worth of Bangor, at the Franklin street crossing on
Commercial street, May "a, 1881.
After full argument, Judge Webb rendered his
decision. Reviewing the evidence, his Honor said
In substance that the motion was based on two
points.
First-That the plaintiff had failed to establish
any negligence on the part of the company which
contributed to the accident; and
Second-That Captain Wentworth himself was
guilty of negligence which contributed to the in
Jury which he sustained.
In reference to the first, the court said that the
burden of proof upon the plaintiff to establish
tho company's negligence. On that point the evil
dence involved SO many questions of fact that he
could understand how the jury might come to a
conclusion adverse to the company. In reference
to the ringing of the bell the lookout upon the train
and perhaps some other matters of fact, there
might be room for difference of opinion as to the
fact and as to the conclusion to be drawn from it.
SO that, although the evidence might lead him to
of those particulars, he did not feel justified in set
ting aside the verdict on that point.
But the jury must have found not only that the
company was guilty Of negligence, but they must
have failed to find evidence of cotributory negi-
gence on the part Of Captain Wentworth. For even
the evidence showed negligence the part of the
company which contributed to the accident, yet if
1t also showed contributory negligence his part,
the defendant would be entitled to a verdict. Be-
cause, where both parties IN fault the law will
not undertake to determine which is most in fault
nor will 1t attempt to divide the damages, but it
leaves the parties where the joint act of negligence
leaves them. Such a case is one where the condi-
ton of the defendant in law superior to that of
the plaintiff. Now, on this question, the evidence
does not seem to be conflicting. 1t shows snbstan-
TALLY that Captain Wentworth stepped Immediately
In front of moving engine in apparent uncon-
seriousness of its approach.
puddle, in direction more or less oblique, toward
the track, and stepped upon it when the engine
for considerable time in full sight, without turn
ing to look to see if the track was clear.
Inasmuch as he must have seen the engine if he
had looked, his failure to lock in law act of
contributory negligence, unless exercised by some
act of the company or unless he was in some other
way relieved from the exercise Of his senses at that
Now, it has been urged that the running of the
nrst train over the same track short time before
s ws !, such an act but the this does not
the train to have been at too great
distance to justify such an inference. It is also
evidence that Mr.. Wentworth ever noticed or
saw the first train. When it passed the Franklin
street crossing he must have been, it would appear
q considerable distance from that place. perhaps as
far as Mr. Thaxters store judging by the distances
on the plan.
However that may be, there is no evidence that
he saw it. The case of flying switch is very diff
ferent.
In q case where woman had seen an engine with
part Of a train pass and then at once stepped up
on the track without looking back and was injured
by o car which had been detached from the forward
part of the train it held that this separation of
train was calculated to mislead her, and thus
heved her from the duty of looking backward.
Inasmuch as the evidence seems to me to show
concIusvely contrbutory negligence on the part of
Captain Wentworth, and does not show anything to
relieve him from the exercise of ordinary care at
that time the judgment must be, Verdict set aside;
new trial granted"
II. d. Hadlock for plaintiff.
c. Goddard for defendants.