Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-06-08

then as car inspector. It was his duty
with other inspectors to select cars
which would pass inspection to be sent
10 the freight house to be loaded On
the morning OF Oct. 81 he in company
with Mr.. Robinson, another inspector,
was inspecting freight cars on spur track
No IS in the western freight yard of the
defendant company at Bangor This was
a dead end track located nearest Main
street, and was reached by a side track
or lead so called, on its western end.
The lead connected successfully with
tracks, 81, a. IS and IS and In their or
der. Upon track 81 there was string of
i've freight cars which had been put in
there the night before.
Westerly of those five cars and distant
from them about 10 or 10 feet, was an
other string of cars consisting of three
box cars and baggage car. The two in
speetors began TO inspect at the easteriy
end of the five freight cars and had in
spected two and were inspecting the east
erly end of the third or middle car of the
five. Mr.. Gates was STOPPING or kneeling
down at or under the easterly end of the
car, his right knee on the rail, with his
left hand on the operating lever and his
right hand between the rails, looking up
under the car. While in that position
shifting engine came in on the lead track.
coupled onto the string OF four cars and
then moved easterly to make hitch to
spectors were at WORK. The hitch did
not make and the string of five cars was
thereby pushed easterly. When the five
ctars started Mr.. Gates was instantly
killed.
Rule % of the defendant company pro-
vides: "A blue flag by day and blue
light by night, displayed at one or both
ends of an engine, car or train, indicates
that workmen are under or about II;
when thus protected 1t must not be
copied to or moved Workmen will dis
play the blue signals and the same work
men are alone authorized to move them.
Other ears must not be placed on the
same tracks so as to intercept the view
of the blue signals. without first notify
ing the workmen." And Rule 946 pro-
vides: "Car inspectors. When inspecting
or repairing cars which they do not
wish moved, they must protect them
selves by placing conspicuously a blue
signal on both ends of the car as pro-
vided in Rule %.
1t is admitted that neither Mr., Gates
nor his companion, Mr.. Robinson, had
ing these cars by the use of blue fags or
any other warning to indicate that they
were under or about the cars.
But it is contended in argument in be-
half of the plaintiff that the defendant
had knowingly suffered its blue flag rule
to be habitually violated by its car in
specters that it should be treated as hav-
ing been abrogated with its consent, and
therefore that the deceased was not neg
lgent in not using the flag for his pro-
lection in this instance. The evidence
does not support that contention 1t
clearly appears that Mr.. Gates was IA
mliar with the rule requiring the flag 70
be used, that he had been personally
warned always to he careful and have
the flag IL pfor protection" and that he
had used it. Moreover six days only
before the accident. the general foreman
of car repairs issued the following no.
tice which was posted in the shop where
the car inspectors congregate before go
ing to their work:
Bangor, Maine. Oct 90, 1911.
Notice to Foreman, Car Inspectors.
and Repairs: l am sending for use as
soon as received blue flags mounted on
two STATS | wish when these flags are
used to have them placed at some DIS
tance from end of ear. placing one staf
rail In this way our flags will be in
CONSPICUOUS position, and will be run
over II not removed, This to my mind
will give. us better protection than the
old flags have given
In the recent case of Hart V. Bangor
&~Aroostook r. r.. CO., 10 Maine $40, az.
this court said: Gar repairers, who
knowingly go under damaged cars. In
railroad yard where cars are likely, at
any time, TO be moved against such car,
without placing a danger signal of some
character or taking other precaution for
safety, are held generally to assume the
risk of injury, while so engaged
1t Is the opinion of the court in this
case that the evidence shows that Mr.
Gates knowingly assumed position of
danger not readily dscoverable, and that
it was his duty to use all available
means to give warning to his master and
others of his position of danger, and
that his failure to do so was a lack of
due care on his part which bars the
plaintiffs right OF recovery. And it is
also the opinion of the court that the
evidence does not show negligence on the
part Of the defendant