Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-02-03
NOT GUILTY.,
Continued from Page Eighty

other circumstances. There. used 10 he
a theory that III law there were several
degree of negligence which which legal
was measures as slight or
binary and gross. In this case il is in
sisted that the State must show gross
negligence Oh the part Of the defend
ants before they can he held responsible
That is tue, and gross negligence may
arise from want of proper care The law
now in this State and ] think it is the
prevailing law of the land tlat the legal
measure Of duty with respect to nearly
all legal relations Is better expressed by
the phrases due care, reasonable care or
ordinary care. Reasonable care. such
care as All ordinarily reasonable and pru-
dent person exercises with respect to his
own affairs, under Ike circumstances
The duty intended by the use of the
phrase ordinary care is always referabl.
TO the circumstances and conditions I'M
der which the act or omission to act is
required to be performed. And our court
holds that in every case negligence. how
ever described, is merely 4 failure to be-
stow the care ard skill which the situa-
ton demands. 1T means the absence Of
the care that was necessary under the
circumstances. l give you that as the
RUE to govern you in determining the
guilt or Innocence of these DEFENDANTS:
did they exercise tho care that was
necessary under all the circ,uu stalces
proven in this case? If they die they
are not guilty. II they did not use such
care in proceeding with their trains. and
YOU are satisfied that the rlmnin. Of their
train was the direct Cause of the death
of EclencCr. your verdict should be gull
ty. The state contcnGs that the defend
ants not cnly failed to do their duty' to
the public in proceeding with their train
under the circumstances. but that if they
started their train by reason of anything
said to them by the train dispatcher they
violated their duty as employees of the
railroad ccmpany-beoausc Il rule Of the
railroad obliged them to obey fully and
to the letter their written orders and for
| babe their taking verbal orders for the
movement of trains. Ii is c"ntended
strenuously il defence ana as an excuse
for their proceeding With thri? train
without making sure of the position of
train %, that the conductor was chided
| by the dispatcher for former della" in
obeyng an order. ana told him to get
II to Clinton as quick as you can" that al
| though he knew that train IS had not ar
rived and looked upon the register to see
| where it vas, intending TO inquire, the
remarks Of the dispatcher put it out Of
his mind and induced him TO proceed
with his /, ain. 1t was the legal duty of
the conductor to follow the rule and not
| to take verbal nsti uCtions. and il is for
you gentlemen 10 say whether or not the
remarks of tie dispatcher and his verbal
orders, if he gave any, relieved them
lfrom the exercise of the care viii III they
were bound to exercise urder the ,ircum-
stances in which they were placed. Did
they know of the peril Of starting thei"
train or might they have ascertairied it
with the proper care which they were
bound to bestoW? The law is very careful
OF human life and holds to the exercise
Of great care all who have its safety in
their keeping or control 1t does not ex-
act infallioility Of Judgment II nor every
conceivable precaution for its safety. but
it does require all reasonable safeguards
are ell reasonable attention, foresight and
caution III those entrusted with peoples
safety. AS conductor and engineer oil a
railroad train they were bound to eNer-
lcisc great care-that Is. such care as the
circumstances demanded in the movement
of their train. have said that an estab-
ilished rule of the railroad required en-
Iploves to obey written order fully and
to the letter. and never to take verbal
orders for the movement of trains. This
is manifestly Il reasonable ana wise RUE,
and tends to the public safety, but it is
not for violation Of it that the defendants
are prosecuted 1t is urged tEat the
verbal remarks of the dispatcher ana his
order to the conductor in the presence of
the other defendants, the engineer. 10
.'sct to Clinton as quick as they could,
| furnishes an excuse for their starting
their train or. at least, faVoraby colors
any want Of due care that they may
have shown. but il will not be Contelded
and has not been that any verbal or 9TH
er orders from the dispatcher or any
scnlding or criticisng for former delays
in novinp their train would excuse them
for running their train out with the
knowledge that they were exposing it to
the Peril of Il collisioin 1t is not nHces-
sary in Order to charge these men with
responsibility for the death OF btienGei
Ithat Won sho,,ld find that they absolutely
knew of the I'efll lHeN were id1'pS'' II -
sufficient if you are satisfied that IN me
position thev occupied in control of their
train. they did not use the requisite care
and diligence to ascertain the situation
of train 90 It il contended that they did
use such care That the conductor looked
at the register to assertion and intended
to inquire but that the renlarkc Of the
diar at,hcr put it out of his mind. II That
is truc. o,r-ht it to have done so? Would
or should it have put so important cir
cun,stance out of the minds Of mon Of
ordinary caution and prudenc" in Ike
circumstances? For that is the test
They were bound 10 act with the 1ru-
denco and caution which the situation dc
manded. and no orders would justify their
SO acting as 10 imperil human life if they
krew or if they should have known Of
such Peril impending
In considering the case YOU should take
into consideration all tie circumstances
surrounding the accident and the events
leading up to it. In connection with the
question of oulpable negligence Of the
defendants would should consider any and
all the Inducements, verbal orders of the
tetNA r