Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1924-04-01

A rescrfpt was handed down by the
law court Monday in the Kennebec
county case Of Albert L. Jelley VS..
the Androscoggin & Kennebec Rail-
way Company, sustaining the motion
Of the defendant, setting aside the YER
dict and granting a new trial.
The rescript per curtain is as fol-
lows:
Action on the case for damages to
plaintiffs automobile. The jury re-
turned a verdict for sS12.50. The case
Is before the court on defendants gen.
eral motion and exceptions .
About midnight on August 20, 1923,
the electric car of defendant company
came into collision with the automo-
bile Of the plaintiff at point on its
track one mile north Of Gardiner. The
highway between Gardiner and Hal
lowell was. at the time, under con-
struction. and closed to traffic. At the
Farmingdale line, the next town north
Of Gardiner, a barrier extended across
the street. at a point where detour.
through Northern avenue, turned off to
the left. This barrier was comprised
Of two horses, a plank and sleepers
laid on the ground. The BARRED was
lighted by lanterns at night, and bore
two signs. one stating that the road
was under construction and closed to
traffic, the other, detour sign with
an arrow pointing to said Northern
avenue, which was near at hand, with
street light covering the above named
objects and location. South of the bar
rier was another detour sign. The
upper end of the road was closed in a
somewhat similar manner. Plaintiff
belonged in Nashua, N. II. He arrived
in Gardiner from Portland at about
midnight, and proceeded north towards
Hallowell. Before reaching the bar
rier he saw detour sign. He states
that he made some effort to find the
detour. and then proceeded on past the
detour sign. He then came to the bar
rier in the road. at Northern avenue
where the detour road was visible TO
the left. He saw the sign on the part
rier at this point, but passed by the
barrier on to the road then under con-
struction without reading the words or
the sign. He at once encountered
roueh and heavy wheeling and after
progressing a half mile or so came 70
a stranded car, which he says he could
not PASS in the limits of the Travelled
road. and therefore directed his car
over one rail of defendants car line
and PASSED along some distance on the
track until he came to a rough pof-
tion of the track from which he was
unable to emerge. He was stalled OF
the defendants car line, through nc
fault of the defendant. This is very
clear from the plaintiffs own test,mo'
nv. 1t is equally clear that the pam
tiff was not exercising due care Wnef
he passed the barrier without readlhe
the warning on the sign.
The plaintiff testified that, findins
himself "in predicament," ne
sought to find plank or other means
to aid in removing his car to the
travelled way, and was thus engaged
when he discovered defendants car
coming down the grade toward MN
He then ran forward GO or 65 feet
waving his hands at the approaching
car. He was asked: "Q-Why did
mt you go back further than you
did? Al presumed they would not
take my signals" He testified also
that there was no decrease in the
speed of the car before the collision
It had been raining and was foGgy
The motorman testified that on APP
preaching the scene Of the accident,
he was standing in his proper place
and Cooking ahead all of the time;
that he saw first the reflection of
his headlight on the back window
of the automobile, and applied the
emergency brake as soon as he no.
ticed it, after which he saw q man
standing right near the rail-" the