The Somerset reporter., 1903-07-16
A Somerset Case.
The following Somerset case has been
reported by the law court:

reported by the law court:
Milford Withee VS.. The Somerset Trac-
ton Company.
Rescript, Peabody, J. This was an action
to recover damages for injuries sustained By
the plaintiff which he alleges we're caused
by the negligence of the defendant corpora.
ton. The verdict was for Sb47z.o3. he
case was brought before the law court on the
defendants motion for q 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 de.
PENDANT was guilty of negligence in reference
to the plaintiff in the relation Of master and
servant; second, that the plaintiff did not as.
sumo as a risk incident to his employment
the special danger of being hit by this part.
cuar pole as then located; third, that the
plaintiff did not contribute to the accident by
failure to use due care.
The defendants alleged negligence de-
ponds upon facts as to the location Of the
trolley pole by which the plaintiff was struck
relative to the track, and conditions in re
ference to the car on which he was serving
as conductor, also upon the facts which relate
to the nature of the plaintiffs services and the
duty which the defendant assumed towards
its servant.
The distance from the inside Of the pole to
the outside of the rail was forty four and one.
fourth inches, and to the outer edge of the
running board of the car nineteen inches
less. The pole inclined towards the track
six and one fourth inches at the height of the
plaintiffs head as he stood upon the running
board, so that an object al this height yerti-
cally above the outer edge of the running
board would be nineteen inches from the
pole. This pole was about twenty two inches
nearer the rail than the average distance of
the three hundred eighty.one poles, on the
entire line of the road.
The Seating capacity OF the open car rum
ming at the time of the accident was sufficient
for about fifty passengers and on this day
there were from ninety-tye to a hundred.
They were received in accordance with the
usual custom and verbal instructions to the
conductors. In consequence of the
crowded condition. of the car, passengers
stood upon the platform at each end and
on the running boards on each side.
The trolley poles were placed in different
positions of the road on alternate sides, but
the greater part on the easterly side of the
track, among which was the accident pole.
In taking the fares, it was impossible or i'm
practicable for the conductor when the car was
crowded, as on this occasion, to collect them
while standing on the side opposite the pas
senger. In passing along the running board
for that purpose it was necessary for him to
step around passengers standing upon it,
and to rely upon the handle bars for support.
The nearness of the inelinng pole to the
head of the conductor as he was performing
this duty was the proXimate cause of the in
jury. There seems to have been no reason
why this pole and those Immediately north
and outh of it should be set ne4er than was
usual along the electric read.
1t 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 it to remain
with decided inclination towards the cars,
fitted with running boards on which passen-
gers were permitted and invited to ride, was
guilty of negligence towards the conductor
while engaged in the line Of his duty.
Equally important questions were the cares
which the servant was bound to exercise and
the risks he assumed incident to his employ
ment If the defect was an obvious one, or
if the plaintiff knew or by the exercises of
ordinary care ought to have known that this
pole was unusually near OF inclined toward
the track so as to be liable 10 hit person pass
ing another on the running board of the car,
he could not recover Notwithstanding the
defendants negligence in the improper loca-
ton of the pole.
He had been employed for -four years by the
company as conductor and motorman and
had been previously engaged in setting trolley
poles, some being the identical ones located
at no greater distance from the track than
the accident pole. But, as matter OF fact, he
had not noticed the proximity of the pole or
its inclination. lis position ON the ear was
not favorable for detecting or noticing such a
defect, and when employed in setting the
pole it had been the general rule to locate
them eight feet from the center of tn poles
to the center Of the track and he had noticed
only a few devations 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 obliyiousness to SO obvious 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 a
risk he assumed as incident to his employ
ment The Jury found otherwise from the
evidence.
The case vas properly submitted to the
jury. They had the opportunity to view the
place % accident, to observe the poles and
other objects called to their attention, and
to see the witnesses. There is no such
obvious want of preponderance of evidence
in favor of the plaintiff as indicates that they
were Improperly influenced or failed to
observe the rules of law given them by the
court; nor that the damages were excessive.
Motion overruled.