Daily Kennebec journal., 1905-12-11
law COURT
Renders Decision in the
Copp Railroad Case.
Sustains Verdict Given by the
Jury for Plaintiff.
Rescripts Received in Piscataquis and
Aroostook County Cases.

The law court, Saturday, handed down n
decision in the Kennebec county case ri
Judith +. Copp administrative, versus the
Augusta, Winthrop & Gardiner Railway
Co, overruling the motion made by the
counsel for the defendant corporation ask
ing for 4 new trial.
The action was to recover for The death
of Benjamin Copp of Augusta, who was
killed. Aug. Il, 1901, by being run over
by an electric car on Western avenue III
Augusta. The ad damnum was placed at
$4,000. The case was tried before Asso-
ciate Justice William Penn Whitehousc
at the October term of the supreme judi
cial court last year. and the jury return
ed verdict for the plaintiff assessing the
damage at $10S3 This decision of the law
court sustains the verdict of the jury.
E. M. Thompson, Esq, of Augusta, APP
pearcd as counsel for the plaintiff. and
Heath l. Andrews for the defendant cor
poratiOn.
The resCript, with no opinion drawn by
Justice Spear is as follows:
This is Il common action for the con-
sCiOuS suffering of the plaintiffs inteS-
tate who was struck by the defendant $
car on Aug. 13 1904, shortly after = T.. M,
and died about A u. NJ on the same date.
The verdic; was for $l0S3. The accident
happened ut the corner of CuShman
street and Western avenue in Augusta.
The plaintiff's intestate at the time of the
accident WAS engaged in hauling gravel
from gravel pit situated on the easterly
side OF Western avenue. The driveway
led out of the pit at right angles with
the avenue. The distance on Western
avenue from Il point opposite this drive
way to the center of thc CuShman street
crossing was 30 feet. The deceased was
limo lAn
Western avenue across the railroad track,
thence down CuShman street to Il school
house. This had been his employment for
a long time. He was using two horses
and a dump cart and was sitting upon the
seat driving his team when struck by the
car. The cart, horses and load. at the
time of the accident weighed something
like 5000 pounds. The average grade of
that part of Western avenue traverSed
by the deceased was over per cent. The
motorman driving the car which collided
with the team had IL clear view if look
ing, of the road and track in front of
him to the junction of Western avenue
and Cushman street, n distance of l0SS
feet. and admits that he saw the deceased
with his loaded team driving towards
Cushman street, at Perry's house. Il dis
tance of SGj feet away The day was
clear and the view unoDstructed. The mo-
torman says he knew that the deceased
was hauling gravel from the pit on West
ern avenue down the avenue to CuShman
street and anticipated upon this partcu-
lar occasion that he was going to turn
across the track into Cushman street
with his load
The amount of the verdict. if sustain-
able. is not attacked. The only question
therefor raised by the motion is whether
the defendants negligence was the prox
innate cause OF the injury to the plain
tiff's intestate. This raises the question
first. whether the defendants We're negli-
gent in the performance of the act which
caused the injury, and second, whether,
flany- al.
negligent acts did not contribute to the
accident which caused his injuries.
Whether the defendants were negligent
depends upon the rate of speed at which
they We're running their car down Il steep
grade approaching a street junction. to
enter which their track must be crossed,
and over which they expected the deceas-
ed to pass with his loaded team on his
way into CuShman street. The defend
ants contend that they were driving at n
moderate and reasonable rate OF speed
not over five or six miles an hour, and
introduced witnesses to establish this
fact. On the other hand, the plaintiff
contends that they were driving their car
down this grade at a dangerous and reck-
less rate of speed without any regard to
the rights of the plaintiffs intestate. The
question of speed here raised was purely
one of fact for the jury ard under proper
instruction by the court no exceptions
being argued the jury found for the
plaintiff. We think the evidence fully war
rants their finding. The next question is
whether the defendants arc relieved from
their negligence on account of the con-
tributory negligence of the deceased. The,
determination of this question also de-
pends upor the rate of speed the de-
PENDANTS were driving their car. 1t has
been recently decided that mOtorman
when approaching Il public street junction
shall be held to anticipate that any per
son approaching from either side may
turn into it and shall then exercise due
care 50 rs to have his car under snch
control rs to be able to stop at 4 cross
rg if necessary. to avoid an accident.