Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-07-10
NO NEW TRIAL.
Law Court Decides Case of Milford
Withee VS.. Somerset Traction Co.

i Withee We. Somerset Traction Co.
| BY q, rescript handed down by the
| law court through Justice Peabody the
motion for q new trial by the Somerset
| Traction Co, of Skowhegan, in a
damage suit Is overruled. The action
was that Of Milford Withee We. the
Somerset Traction Co., and the rescript
| Is as follows:
This was an action to recover dam
ages for injuries sustained by the
plaintiff which he alleges were caused
by the negligence Of the defendant cor
poration. The verdict was for $1472.08.
The case was brought before the law
court on the defendants motion for a.
new trial. The plaintiff was employed
by the defendant as conductor on its
electric railroad, and he was struck by
one of the poles erected to support the
trolley wires.
The jury must have found, first that
the defendant was guilty of negligence
in reference to the plaintiff in the re-
lation of master and servant; second,
that the plaintiff did not assume as
risk incident to his employment the
special danger of being hit by this
pune eiiCiA iOS@sNAB hhAhNb
that the plaintiff did not contribute to
the accident by failure to use due care.
The defendants alleged negligencede de-
Ponds upon the facts as to the location
of the trolley pole by which the plain
tiff was struck relative to the track,
and conditions in reference to the car
on which he was serving as conductor,
also upon facts which relate to the ma
ture of the plaintiffs services and the
duty which the defendant assumed
towards it's servant.
The distance from the inside of the
pole to the outside of the rail was 44A
inches and to the outer edge of the run
ming board of the car 10 inches less.
The pole inclined toward the track 6A
inches at the height of the plaintiffs
head as he stood upon the running
board, SO that an object at this height
vertically above the outer edge of the
running board would be 10 inches from
the pole. This pole was about % inches
nearer the rail than the average dis
lance of the 3S1 poles, on the entire line
of the road.
The seating capacity of the open car
running at the time Of the accident was
sufficient for about so passengers, and
ON this day there were fronf~95 to 100.
They were received in accordance with
the usual custom and verbal instruc-
lions to the conductors. In consequence
of the crowded condition of the car
passengers stood UP on the platform at
each end of the running boards on each
side.
The trolley poles were placed In diff
ferent positions of the road on alternate
sides, but the greater part on the east
ly side of the track, among which was
the accident pole. In taking the fares.
it was impossible or impracticable for
the conductorsWhen the car was crowd
ed. as on this occasion, to collect them
while standing on the side opposite the
passenger. In passing along the run
ming board for that purpose it was
necessary for him to step around pas
sengers standing upon it, and to rely
upon the hand bars for support. The
nearness of the inclining pole to the head
of the conductor as he was performing
this duty was the proxinate cause of
the injury. There seems to have been
no reason why this pole and those I'M
mediately north and south of 1t should
be set nearer than was usual along the
electric road.
It Is the duty of the master to provide
the servant with a reasonably safe place
while performing the services required
of him.
The jury found that the company by
thus locating the pole and allowing 1t TO
remain with a decided inclination towards
the cars, fitted with running boards on
which passengers were permitted ana In
vited to ride, was guilty of negligence to-
ward the conductor while engaged in the
line of his duty.
Equally important questions were the
care which the servant was bound to >eXer-
else and the risks he assumed incident to
his employment. If the defect was an
obvious one or if the plaintiff knew, or
by the exercise of ordinary care ought to
have known, that this pole was unusually
near or inclined toward the track so as
liable to hit a person passing another on
the running board of the car, he could
not recover Notwithstanding the defend
ants negligence in the improper location
of the pole.
He had been employed for four years
by the company as conductor and motor
man and had been previously engaged In
e"ttirE trolley poles. some being the iden-
teal ones located at no greater distance
from the track than the accident pole
Eut, as matter of fact, he had not noticed
the proximity Oh the pore or us lncnna-
ton. iHls position on the car was not
favorable for detecting or noticing such
a defect, and when employed in setting
the poles it had been the general rule to
locate them eight feet from the center of
the track, and he had noticed only few
deviations where the track was moved
toward one side of the true location.
1t is contended by the defendant that
the plaintiff was not only careless in his
acts but that his obliviousness to so OBJ
vious a peril as the pole which he had
passed thousands of times, several times
daily. was at least want of ordinary care
and that was risk he assumed as Incl
dent to his employment. The jury found
otherwise from the evidence
The case was properly submitted to the
jury. They had the opportunity to view
the place of the accident, to observe the
poles and other objects called to their
attention and to see the witnesses. There
is no such obvious want of a prepon-
derance of evidence in favor of the plain
tiff as indicates that they were improp-
erlY influenced or failed to observe the