Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-07-29
NEW TRIAL ORDERED.
important Points in Accident Case Nv
Law Court.

J ing rescript from the law court in the
case of Butler VS.. the Rockland Street
Railway. drawn by Justice Savage has
been handed down by the law court:
1. A street railway company has the
lawful right to operate its railway in
! the location where it has been placed
| and run it's cars singly or in trains
upon the track; but it is its duty to do
so, having due regard to the safety.
not only of travellers upon the street
but of those who may have occasion to
cross the track in driving out from the
yards of houses situated along the rail-
| way.
| 2. The speed at which a car or train
may properly be run, the kind of con-
troll over it. and the degree of watch
fulness which is imposed upon those In
charge. must depend to sol,e extent
upon the surrounding conditions. such
| as the nearneSS of the track to the side
| of the street and to the houses. the
| likelihood of persons driving out from
| the yards. and whether the driyeways
are so situated that persons driving
| out over them can see or learn of the
| approach of cars in season, with dine
| care, to avoid collision. The railway
| company and its servants have a right
| to assume that all such persons will
| themselves be in the exercise of or,li-
| nary care.
| 3. 1t is the duty of 4 street railway
company at all times to use due care
in view Of apparent dangers and those
which may reasonably be expected. so
to regulate the speed of its cars. so to
| lave them under control, and so to he
| on the lookout for n team to cross that
those in the teams, if they themselves
| are in the exercise of due care. shall
not be put in jeopardy.
| 4. The person in charge of the car
must exercise due care and Judgment
and the movements of the car must be
regulated with reference to the ap-
parent situation. If it be apparent that
a collision is likely to occur, it is the
duty of the servant in control of the
car to be ready to use, and to use. if
necessary, and when necessary, all
practicable means to prevent il,
5. Applying the foregoing rules to
the evidence in this case, the court is
of the opinion that the jury was war
ranted in finding that the defendant
was negligent.
6. The plaintiff was driving out of
the yard of a house by which the de-
PENDANTS railway track extended. He
was seated in n covered delivery wag-
on. The corner of the house. at which
point the plaintiff first had opportunity
to see the approaching train of the de-
fn,a ,l>o On
the railway track. The evidence, taken
as favorably for the plaintiff as it rea-
sOnably can be, shows that the Defend
ants train. at the time the plaintiff
came to the corner of the house was not
more than 200 feet distant. He testi-
fled that at the corner of the house he
looked in the direction of the train, but
saw nothing. He then set so far back
upon the seat. of his wagon as not to be
able to see the approaching train, and
drove on. Just as the plaintiffs wagon
was over the rails at the driveway it
was struck by the forward car of de-
PENDANTS train.
In view of the evidence and taking
as true the contentious of the plaintiff
as to speed, the court is forced to one
of two conclusions-Either that the
plaintiff, if he looked for cars, saw the
train less than 200 feet away and NOV
ing towards the crossing; or that he did
not look at all. The evidence shows
clearly that he could not have looked,
as he says he did, without seeing the
train. If he looked and saw the train
it was gross carelessness in him under
the circumstances to attempt to cross
the track in advance of the train. On
| the other hand, if he drove out of the
yard without looking or ascertaining in
i any way whether cars We're near, or
without employing and senses in an en-
IdeaVor to ascertain whether crossing
| the track would be safe or otherwise,
he was clearly negligent and his negli-
gence contributed to the injury.
| Z. In such a case of collision, where
| the plaintiff is guilty of COntributory
| negligence. he must fail unless it ap-
pears further that after the plaintiffs
negligence, Independent OF and dis
tinct from any prior negligence of his
own, the defendant was negligent, and
| that this negligence was the proximate
| cause of the plaintiffs injury. 1t must
appear that at some point of time. in
View of the entire situation, including
the plaintiffs negligence. the defend
ant was thereafter culpably negligent,
and it's negligence the latest in the sue
| cessiOn of causes.
| In this case it cannot be said that
the defendants negligence was subse-
luent to and Independent of the plain
tifr's cOntributOry negligence. 1t was
contemporareOus, not subsequent. 1t
| operated to produce the result in con-
nection with the plaintiffs negligence,
| ana not Independently Of it. The plain
tiff's negligence actively continued
| from the corner Of the house to the
point of collision. 1t was operative to
| the last moment, and contributed to
| the injury as the prOXimate cause.
o. The language of the doctrine of
| prior and subsequent negligence i'm
plies that the principle is not applicable
when the negligence of the plaintiff and
| that of the defendant are practically
| simultaneous.
Motion for new trial sustained.