Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-06-09
IN DEFENDANTS FAVOR.
Law Courts Opinion in Case Day VS.
Boston G. Maine r. r.

Boston & Maine r. r.
An opinion of the full bench was an
nouncod, Monday, in the case of Lot
tie l. Day VS.. the Boston & Maine
Railroad, for the defendant The
opinion, drawn by Associate Justice
William Penn Whitehouse, says in
part
This action is founded on the
statute of 1891 giving a right of action
for injuries causing death, and is
brought against the defendant COM
pany to recover damages for neGli-
gently causing the death of the
PLAINTIFFS interstate, Edwin Day, at the
Junkins railroad crossing in North
Berwick on the 21st day of July, 1899.
The former trial of the action at the
September term of court, 1900, resulted
in 4 verdict of $4,000 in favor of the
plaintiff, This verdict was set aside by
the law court for reasons sufficiently
stated in the opinion of the court, SO
Me, 207. The cause came on for trial
4 second time at the September term
of court, 1902, and after the evidence
had been introduced for both the
plaintiff and the defendant, the presid-
ing judge directed the jury to return a
verdict for the defendant. The case
comes to this court a second time on
the plaintiffs exceptions to the ruling,
with n stipulation that ''if Il verdict in
favor of the plaintiff would have been
authorized by the evidence Judgment
shall be reneder for the plaintiff for
such sum as the law court believes
the plaintiff is entitled to-"
!. appears that MIR. Day was driving
on Wells street at the rate of about
five miles an hour, and according to an
average in estimates of the distance
made by the plaintiffs witnesses he
stopped at a point about thirty-tWo
feet from the crossing and just outside
of the line of the snoW-fence twenty
seven feet fIom the center of the
track. 1t is not in controversy. that
at any point on Wells street within Is
feet from the crossing, some portion of
the train must have been visible to Mr..
Day after it approached within 253
feet of the crossing; and at Il distance
of q feet from the center of the
track, being inside of the line of the
snoW-fence, there was unObstructeG
view of the whole train.
"a 49,
Mr.. Day hurried his horse right up
into trot" towards the crossing; and
| it IS a reasonable inference that this
| hurried trot' was not less than five
| miles an hour or seven feet per sec
| ond. the speed at which he was jog
| Giug along before he stopped. The
| plaintiffs evidence tended to show that
the train was running at speed of at
| least 80 miles an hour, or % feet per
second. If so, it traversed the entire
distance of 253 feet in three and one
| half seconds and the whole train must
have been within the limit Of 253 feet
and in plain view of Mr.. Day before he
had advanced TO a point within Is feet
of the track Under the circumstances
thus disclosed by the plaintiffs own
evidence. it is inconceivable that if
Mr.. Day had been Vigilant and alert
and exercised the circumspectlon OF
| careful and prudent man, he could
have failed to see some indication
of an approaching train, or if he had
listened attcntively that he could have
failed to near some signal or sound OF
an approaching train, before ne
reached the point of dangerous proH-
unity to the railroad track.
In the former opinion in this case
(96 Me, 212) it is said: There is no
evidence that in approaching the rail-
road crossing Mr.. Day took any pre-
cautions whatever to ascertain whether
a train was also then approaching the
crossing from either direction. Trus,
he stopped momentarily some twenty
feet from the crossing, but it does not
appear that he looked or listened or
took any other measures to ascertain
what might be approaching on the
railroad tracks. There is on evidence
for what purpose he stopped there.
But the record now before the court.
with the additional evidence presented
at the second trial of the case. tends
to modify this view and to strengthen
the probability of the alternatives sug-
gested at the close of the opinion that
being aware of the approaching
train. he recklessly undertook to
cross before it,
The inference from all testimony con-
sdered in the light of the undisputed
situations, is almost irresistible that
Mr. Day did either see or hear the
approaching train but overestimatlng
its distance or miscalculating its speed,
with an absence of caution which is
rashly undertook to cross the track in
front of the train instead of waiting
for it to pass. If So the consequences
of such mistake and temerity cannot