Hackett v. Maine Central Railroad , 142 Me. 167 ( 1946 )

Thaxter, J.

The plaintiff, while driving his automobile over the Court Street railroad crossing in Auburn, collided with a train of the defendant proceeding northerly through the crossing. He has brought an action to recover for personal injuries and for damage to his car. After a verdict for the plaintiff, the case is brought before us on the defendant’s motion for a new trial.

The main fine of the Maine Central Railroad Company crosses Court Street at grade. Court Street, running east and west, is a wide and busy thoroughfare; and the crossing is protected by gates which were operated by a gate tender during the entire twenty-four hour period. On the southerly side of the street and close to the crossing is a building which obstructs the view of the tracks in a southerly direction. One proceeding easterly and approaching the crossing, particularly when driving on the right hand side of the street as the plaintiff was doing, can see the tracks southerly but a short distance until practically on the railroad right of way. The gates are located approximately on the line of the easterly wall of the building above mentioned. The distance from the line of the gates to the point on the main line tracks where the accident took place is approximately fifty-five feet, and before coming to the main track the traveler going toward Lewiston, as the plaintiff was doing, must cross a spur or side-track.

The plaintiff was born in Auburn, had lived there all his life, for many years had been employed by the Androscoggin Mills in Lewiston, and at the time of the accident was the office manager of that company. He was thoroughly acquainted with the crossing in question. As a matter of fact he testified that he went down Court Street every day on his way to work and had been doing so for a good many years. About half past six in the morning on January 20th, 1945, he was driving on Court Street toward Lewiston to his work. There was considerable snow. As he approached the crossing, proceeding at a rate of ten or fifteen miles per hour, he noticed that the gates were up, and without stopping, but looking according to his testimony each way on the tracks insofar as conditions permitted him to see, started over the ■tracks. When he had crossed the first track he heard the roar of a train coming from the south. He attempted to stop but before being able to do so was struck either by the tender of the locomotive or by the baggage car and suffered the personal injuries and the property damage for which he now seeks to recover. The train proceeded on its way without any of the crew knowing of the accident. The train was a special and the gate tender was apparently unaware that it was to be expected. At the time he was sweeping snow from the flange of the main line track. He saw the train when it was six or seven hundred feet away, dropped his broom, and ran to lower the gates; but it was too late to stop the plaintiff,' who had proceeded so far that he did not even see the gates being lowered. The evidence is in conflict whether the headlight on the locomotive was lighted ¿nd the whistle sounded. The plaintiff testified that he did not see the light or hear the whistle. He heard the roar of the train and then saw the driving wheels of the engine.

On these facts there was ample evidence to justify the finding of the jury that the defendant was negligent. In fact the defendant does not seriously contend otherwise. It bases its claim for a new trial on the ground that the plaintiff was contributorily negligent as a matter of law.

The plaintiff’s negligence must be based either on the fact that, he did not stop, look, and listen before proceeding to cross the tracks, or that he did not take proper precautions to stop his car, when, after starting to cross, he should have seen the train.

The facts of this case are very similar to those in the cases of State v. Boston & Maine Railroad, 80 Me., 430, 15 A., 36; Hooper v. Boston & Maine Railroad, 81 Me., 260, 17 A., 64, and Borders v. Boston & Maine Railroad; 115 Me., 207, 98 A., 662, Chief Justice Peters said in the first case, page 444,

“If the presence of a flagman and closed gates indicate a passing train, certainly the absence of the flagman and open gates must be evidence that a train is not presently due or expected.”

And in the second case the court, discussing in a civil action the same facts as in the first case, laid down the rule that reliance on an open gate is not a want of due care. In the Borders case, supra, Chief Justice Savage further amplified the rule and laid down what we must hold is still the law. He points out that it is the law in Maine that the attempt to cross a railroad track without looking and listening for an oncoming train is negligence. He then discusses to what extent this rule should be modified if a flagman, who should be present to warn of an approaching train, is absent. And of course the same rule applies to a gate tender who is not performing his duties. The court points out that there are three separate views each supported by decisions in different jurisdictions. The first is that the traveler has the absolute right to rely on the absence of the flagman and can assume that no train is approaching. The second is that the traveler has no right to assume that the absence of the warning signal is an assurance of safety. The third or modified rule which is adopted as the law in Maine is that the traveler in spite of the absence of the flagman is bound to exercise “the care that ordinarily prudent persons might have exercised under like circumstances” and that whether this has been exercised is a question of fact for the jury. The court says, page 213:

“The modification that the traveler may rely to some extent upon the absence of the flagman removes the case from the class of negligence per se cases. It makes it a question of fact whether the traveler in view of all the circumstances^ including the absence of the flagman, was in the exercise of or-, dinary care.”

In reliance on these cases we must hold that it was a question of fact for the jury to decide whether this plaintiff in entering the railroad crossing as he did was in the exercise of due care.

When he came to the fine of the gates there was a distance of fifty-five feet to the main line of the railroad where the collision took place. At ten miles per hour he would cover this in a little over three seconds, at fifteen miles an hour in two seconds and a half. During that time he had two ways to look to see what was approaching, to formulate a decision in his mind as to what he should do, and then, if the train was too near, to act to bring his car to a stop. His failure under these circumstances to stop before reaching the main track cannot be regarded as negligence as a matter of law. It was a question of fact for the jury.

We feel that the damages awarded by the jury are clearly excessive. It is stipulated that the damages to the car were $1,000. The evidence of the personal injuries suffered by the plaintiff is meager. He had some minor bills, but he lost no substantial time from his work. He complained of some soreness being present even at the time of the trial. We think that $1,000 for his personal injuries in addition to payment for the damage to his car will amply compensate him.

New trial granted unless the plaintiff will remit all of the damages awarded in excess of $2,000 within thirty days after filing of rescript.