Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1895-03-20
Rescripi.

The following law decisions were an
nounced yesterday and rescripts received
by Clerk OF Courts Choate.
ANDROSCOGGIN COUNTY.
National Shoe and Leather Bank VS..
John NJ. Gooding.
Whitehouse J.
Rescript-This was an action on tbs
following order or check: "To Manu-
facturers National Bank of Lewiston. nav
to NJ. G. Perciyal ninety four 12-1OO dol.
lars. Merry &, Gcodinp.
GndorscdD M. G.. Percival.
The non-suit was properly ordered.
The plaintiffs declaration contained No
averment Of an assignment to any one.
and the assignment offered in evidence
was not legally admissible.
Furthermore this is suit against the
drawers of an order. and thele is no evil
dcnce that any demand was made on the
drawce, that he ever refused to pay. OF
that due notice was given to the defen
dant OF the non payment of the order.
Exceptions overruled.
PISCATAQUIS COUNTY.
Walter c. Smith VS.. Maine Central
Railroad Company
Whitehouse J.
Rescript-The plaintiff recovered YER
dict of s419l. For a personal injury re-
ceivcd in collision of the defendant s
cars at Foxcroft with the carriage in
which the Plaintiff and a companion
were riding.
1t is the opinion of the court that under
the settled law of this State the verdict
was not justified by the evidence and can
not be permitted to stand.
In backing cars over highway crossings
the railroad company is only required to
provide signals and safeguards so timely
and abundant that they may reasonably
be expected to prove effectual in warning
travellers who are themselves in the exer-
else of due care and vigilance; it is not
bound to adopt such extraordinary meas
ures as might be needful to warn travellers
who are thoughtless and inattentive or
reckless and venturesome.
The accident was undoubtedly caused,
directly and proximately by a want of due
care and prudence on the part of the
plaintiff himself. He knew that they
were crossing railroad tracks and was
bound to know that railroad track is it,
self warning, and crossing place of
danger. He assumed the duties Of look
out and although he saw the headlight of
the engine, he made no mention of 1t to
his companion who was driving the team.
He neither asked the driver to stop nor to
hurry forward. 1t is the duty of the pas
senger when he has the opportunity to do
so, as well as of the driver, to learn Of
danger and avoid it if practicable.
They attempted to cross the side track
without stopping to look or listen; and
under the law established in this State
and by courts generally they were pre-
sumptively guilty of negligence.
1t is inconceivable, indeed, that If they
had looked attentively, without stopping,
they should not have seen the lights OF the
approaching train and heard the rumbl-
ing and iolting of the cars. If the noise
of their carriage and of the pattering rain
in upon it's top, rendered it difficult to dis
tinguish the sounds, it was their plain
duty to stop the team and obtain better
opportunity to hear.
But the inference from all the evidence
is almost irresistible that they did both
see and hear the approaching train but
rashly undertook to cross the track in
stead of waiting for the train to pass. Ii
so the consequences of such mistake and
temerity, cannot be cast upon the company
If one chooses to make such experiments,
he must bear the consequences of failure
Motion sustained: Verdict set side.