The Republican journal., 1905-05-25
THE McrAGGARr CASE.
Decision of the Law Court in favor Of the
Railroad.

ssA@
Railroad.
BY rescript from the Law Court re-
ceived last week by Tileston Wadlin, ESQ.,,
clerk of courts, judgment for the defendant
was given in the case Of McTaggart. ,adm'x,
VS.. Maine Central railroad, the court hold
ing that the plaintiffs intestate was not act
ing in the line of his duty when the accident
occurred by which he lost his life, and that
the defendant was not liable. 1t was
further held that it was not sufficiently
shown that the pipe near the track was the
cause of the accident, it being shown that
it might have been one of two causes, both
of which are conjectural with no evidence
to prove the truth of one more than the
other.
The plaintiffs intestate was baggage
master on the Belfast-Burnham branch Of
the defendants road. He was given a tele-
gram by station agent and telegraph
operator to throw from his train to a mem
Der of a construction crew working on the
defendants road. 1t was alleged that
while SO doing he was acting in his capacity
as servant for the defendant and that he
WIN
erected six inches from the track in the
construction work, knocked from the train
and killed. He was IN the rear, lower step
of the Car at the time. The case attracted
much attention at the time it was tried.
This is the rescript:
Waldo county, Dllla McTaggart, adm X,
VS.. Maine Central K. II. Co. Rescript by
Savage, j.
10. tlo
Court, with a stipulation that 1t is to be
heard as if a verdict had been rendered for
the plaintiff, and d motion for new trial
had been filed by the defendant, all con-
illusions and lnierences OF tact, which a
jury would have been warranted by the
evideIce in finding tor the plaintiff, must
be found by the court for the plaintiff.
=. 1t is the duty Of master to exercise
reasonable care SO to place its appliances,
boilers and pipes, as to make 1t reasonably
safe for the servant to perform any service
which the master has any reason to expect
that the servant may properly do, at that
place, by virtue of his employment; and
omission to exercise such care is negligence.
g. 1t matters not whether the appliance
is so placed as to be safe or unsafe as to
other servants in the performance OF their
respective duties.
T. In this case, it is claimed that the
plaintiffs interstate, baggage master in
the employment Of the defendant, was re-
quested, while in his car in the train, by
one of the station agents and telegraph
operators along the line to take teie-
graphic message addressed to one OF de-
PENDANT construction crew, which was en-
gagged in repairing the abutmentS OF bridge
over which the train was to pass, and to
throw it off when the train reached the
place where the crew was at work. The
telegram had been tied to stick by the
station agent. 1t is claimed that while the
baggage master was engaged IN throwing
off the message as requested, ana While
standing on one OF the steps at the rear end
of his car, his head was struck, and he was
killed, by perpendicular iron pipe erected
by the defendant in the prosecution OF Its
work, and standing about six inches from
the outside of the baggage car as II passed
He was seen to throw off the telegram %
feet before he reached the location of the
pipe, but no one saw the accident itself
Immediately after, his dead body was found
in a coal bin p feet flom the pipe on the
other side from where the telegram was
thrown Off BY virtue OF Il contract between
the defendant and the Western Union Tele-
graph Co., the defendants station agent
acted as telegraph operator for the COM
mercial business of the telegraph company,
RENTING all proceeds to the latter COM
pany, but being himself paid for his ser
vices both as station agent and as tele-
graphic operator. by the defendant. By the
same contract, the defendant agreed to de-
liver such commercial OF public messages
ds were received. The case otherwise dis
closes no special authority in the station
agent, or duty in the baggage master.
The court is of opinion that the case fails
to show that the station agent was author
jZtd 10 require the baggage master to under
take the delivery OF telegram by throwing
ii oil a moving train, OF that it came within
the scope OF the baggage masters employ
meHt To perform such ii service. Nor does
the case show any such custom of the Sta
ton agent and baggage master to forward
and deliver messages IN this way, from
which it might be inferred that the defend
ant knew and asSented to the practice.
Therefore it is held that the defendant was
noI bound to anticipate the performance of
any such service by the baggage master, as
was undertaken in this case, and did not
owe him the duty OF providing so that he
might do it safely.
). 1t is held further, that even if the fore
going were otherwise, the defendant had
no reason to anticipate that baggage mas
tel in baggage car with two high and
wide doors on the side, as here, made on
purpose to be used by him, would leave the
car and GO down upon one of the lower
steps, as the deceased must have done, if
he was hit by the pipe, for the purpose of
throwing off message, when he could have
done it safely and conveniently from one of
the side doors
g. The court is further of opinion that it
is not proved that the deceased was hit by
the pipe at all He may have been he may
not have been. The train passed slowly
over the bridge and then accelerated its
speed. If then the deceased lost his bal
ance and fell upon the coal bin, as he might
have done, all other known conditions
would be met, as well as by the theory that
he was hit by the pipe. AS between these
two possible causes, it seems to be purely
conjectural which is the true cause. The
court cannot, and a jury should not, select
as between conJectures, unless there. is
something more which may lead reasoning
mind to one conclusion rather than to the
other. The court is of opinion that there is
no such determining factor in this case.
,lu6pment for defendant.