Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-06-09

road company can he held for a failure
OF experiments of that kind: and if
one chooses in such position to take
risks. he must bear the consequences
of failure. When a railroad track
crosses or is crossed by highway. the
traveller with team and the railroad
company have concurrent rights and
obligations with respect to the use of
the Way at the place of Intersection.
1t is not ordinarily reasonable or prac-
ticable for train to stop and give
precedence to a team approaching on
the highway 1t cannot be required to
do So except in cases of manifest
danger when it is apparent that a
collision could not be otherwise
avoided. 1t is the duty of the traveller
on the highway TO wait for the train.
The train has the preference and the
right of way.
On the other hand, the management
of a railroad train must be conducted
with due regard to all of the provisions
of the statute designed to insure the
safety of the traveller both upon the
roadroad and the highway. The train
is bound to give reasonable and timely
warning of its approach to a cross
ing, but it cannot be reasonable ana
timely if the speed of the train be so
great as to render it unayailing. The
explosion of Il cannon may be said to
be q warming of the coming shot. but
the velocity of the latter generally
outstrips the warning. The speed of
4 train at Il crossing should not be so
great as to render unavailing the
warning of it's whistle and bell: and
this caution is especially applicable
when their sound is INSTRUCTED by wind
and other noises. and when interven-
ing objects prevent those who are ap-
preaching the railroad from seeing q
coming train. In such cases, if an un-
slackened speed is desirable, watch
men should be stationed at the cross
ing. If therefore the special train in
question was approaching Il crossing
near the compact part of the village
at the great speed of so miles an hour
without flagmen at the crossing and
without giving the statutory warnings
of its approach the officers and ser
wants in charge of it We're guilty of
gross and culpdble recklessnes which
would justly have subjected them to
the severest censure. But if these
positions, most favorable to the
plaintiff, be assumed to be correct, the
accident cannot be attributed wholly to
the negligence of the defendant if the
plaintiffs intestates after discovering
the train might have avoided the fatal
consequences by the exercise of reason
able and ordinary vigilance and eau
ton on his own part. In such a case
the negligence of the injured party is
deemed q prOXimate cause which con-
tributes to the injury and bars his
right to recover.
After a patient and critical eXamina-
ton OF the case it is the opinion Of the
court that with all the differences
which the jury could justitiably have
drawn from it, the evidence now pre-
scented is insufficient to support a YER
diet for the plaintiff, so that it would
be a duty of the court to set aside such
verdict if it had been rendered. I'm
der such circumstances it is the Cstab-
lished rule of procedure in this State
that the court is not bound to submit
the case to the jury, but may direct a
verdict for the defendant.