Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-12-31
York County.

, Herbert D. Philbrick VS.; Atlantic Shore
same Rescript. Cornish. j.
Cove eons on ca he ease hy oocsht to
between team owned by the plaintiff
Phlbrick and driven by the plalntiH
Cass and car of the defendant, as
Cass was attempting to drive across the
tracks of the defendant In the town of
Dover Bluff.
WAS casterly and westerly. the electric
railroad track running along the souther-
" side and the private way leading off
1t right angles toward the south. The
horse ana 'S canvas Covered fish St eart.
like butchers cart, with a tight com
partmcnt partition hack of the drivers
fse sea w 2P Of 1ns sber oyeT
which were, rolled up on the day of the
accident. The horse was gentle. slow and
not afraid Of electric cars. The driver.
Casss; was a man Of mature years and
familiar with this locality. as it was a
part Of the route over which he regular
~ travelled in his business of peddltns
the highway. parallel with the railroad
track. at n rate Of five or six miles an
hour until he came to the LeBonte house
about Il feet from the crossing. The
rection at rate. as the defendant
claims. of 10 or II miles an hour Begin
ming at point about 400 feet caStcriy
from the crossing there was n down
grade of about per cent. to the cross
ing and for that entire distance q person
approaching the crossing had a clear
view of the track: It was ,, 4 straight
structed the vision: The plaintiff claims
that as he was driving along the north
erly side of the highway opposite the
the crossing. he met n team. which pass
ed hin. on the wrong side. forced him
nearer to the tracks. and brought his
horse down to a walk: that at that time
and at that spot he first became aware
of the approaching car as he then heard
tho buzzing of the electric wire: that
about tFat time he changed his own po-
sition. from the northerly to the SOUTH
crly end Of the seat 50 that he could and
did see the car: that after passing the
team he veered the horse back somewhat
towards the northerly side Of the road,
and continued on MS way: that as he
was swinging around to the left to APP
proach the crossing. and when the horse
was at II little distance from the first
at a distance estimated by him to be
between - and 100 feet. and approaching
ut an estimated speed OF 10 or |. miles
an hour: that nevertheless he drove upon
on the track I didn't think 1 could get
out Of the way quick enough to avoid an
accident because they hadn't slowed mp
any" that the team had nearly passed
over when the car Collidod with the cart
and both the team and the driver were
injured. On motion by defendant to set
aside n verdict rendered for the nlaintiff
in each case, held:
/. That while it is true that il is not
negligence per Sc to drive across an
electric railroad track without looking
or listening or even in front Of an APP
preaching car although one has mis-
judged the distance and speed, yet such
traveller Is bound to exercise degree
Of vigilance and caution commensurate
with the situation. An electric railroad
crossing is a place Of known danger and
no one should approach 1t without senses
alert, nor should one attempt to pass
over it without considering the safety or
peril of tho net Travellers upon the high
way should know that upon them as well
as upon the motorman rests tho duty of
" which they owe not only to themselves
but to the railroad company and TO the
passengers In the car.
9. That the failure to meet this duty
was the proXimatc cause Of the accident
in this case, the conduct of Cass being
careless to the verge Of recklcSsness.
g. That there was no evidence to war
rant n finding that the motorman by the
exercise Of reasonable care could have
avoided the accident after discovering the
situation Of the plaintiff. If there was
any negligence on the part of the motor
pendent of the plaintiffs contrihutory
negligence. but contempbraneons with it.
Tho driver not only negligentlv put him
self in place of peril but continued neg
llCently to move on to the catastrophe
until 1t happened.
4. That the verdicts are so unnnstaK,,
ably wrong that they cannot be allowed
to stand.
Motion sustained in each case. Yer
diets set aside.