Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-09-22
Cumberland County Rescripts.

|
r. r. Co. Rescript, Cornish, j.
The plaintiff asks to have verdict
for the plaintiff in an action on the
case for negligence, set aside as
against the evidence and also on the
ground of newly discovered evidence.
| The case arises out of a collision be-
tween the side of one of the defend
ants electric cars and the top of the
| plaintiffs truck wagon, the plaintiff
who was standing at the rear of the
wagon being struck by the top in its
| fall and injured. The situation as re-
vealed by the evidence was this
The accident occurred in the forenoon
of April 9th, 1908, on Middle street in
| the city OF Portland, one of the prin-
| cipal streets of the city, with electric
cars passing very frequently. The
track al this point and for about 100
| feet above was straight, with five per
cent. grade. The Plaintiff truck
man, drove up the left hand side of
| this street between the sidewalk and
| the track with his team heavily loaded
with merchandise for delivery, at Vari
| Gus points, and stopped in front of the
| Homestead Store for delivery there.
| The space between the curbstone and
| the nearest rail at that point was too
narrow to allow the team to be placed
| al right angles with the street. the dis
lance being twelve feet and three in
| ches while the length of the body of
| the wagon alone was about thirteen
| feet The plaintiff therefore placed his
wagon SO that the rear hind wheel was
| backed firmly against the curbstone,
| the body of the wagon standing dag
onally towards the track. and the
| horse swung around sharply toward
| the sidewalk on the left and in the d
rection from which the cars came. Thc
wagon was of the style known as
cut under the forward wheels turning
| to the right or left beneath the body
without any interference with the sides
and had a top supported by four stakes
one at each corner of the body, and
projecting about six inches over the
supports.
With the team in this position the
plaintiff began to unload the Home
stead merchandise and two cars
passed without obstruction while this
was being done. He finished and was
about to step on to the team and drive
up the street to another store, when a
third car, the one in question. came
down the track. About four ffths of
this car also had passed when the top
of the wagon came in contact with the
side of the car about eight feet from
the ground and seven feet from the
rear Of the car with the result before
described.
Held.
,Ift
support the only allegation of neSh-
gence contained in the writ, nancy
that the car was being driven at
high rapid and excessive rate OF
speed"
. That the Jury were warranted IN
finding no failure of duty on the part
of the employees of the defendant. Inc
mOtorman, seeing the team, Stoppeo
the car and looked out the side OF the
forward vcstibule to ascertain II there
was ample allowance and saw that
there was. The conductor also looked
from the rear vestibule. sighted along
the side of the car with the same re-
suit, and then gave the signal 10 start.
Both exercised due caution.
3. That it was the duty of the PLAIN
tiff 10 use due care in so placing ms
team as not to obstruct the passage OF
the defendants cars and having placed
it he implicitly invited the employees
to pass if there was ample space. From
the attitude and conduct of the team
they had a right to assume that the
plaintiff had so placed it that it would
not move.
4. That the evidence abundantly
proves that the proXinlate cause OF the
accident was the moving of the horse
and the consequent throwing OF the
wagon top against the car, ana that
the wagon ran into the car, and NOT
the car into the wagon.
5. That whether this was caused by
the want of due care on the part of the
plaintifr in not properly placing his
team or not trisging the wheels to pre-
vent their moving, or whether 1t was