Chase v. Maine Central Railroad , 78 Me. 346 ( 1886 )

Walton, J.

We think the verdict in this case is clearly wrong. The rule is now firmly established in this State, as well as by courts generally, that it is negligence per se for a person to cross a railroad track without first looking and listening for a coming train. If his view is unobstructed, he may have no occasion to listen. But if his view is obstructed, then it is his duty to listen, and to listen carefully. And if one is injured at a railroad crossing by a passing train or locomotive, which might have been seen if he had looked, or heard if he had listened, presumptively he is guilty of contributory negligence; and if tins presumption is not repelled, a recovery for the injury can not be had. These rules have been so recently and so fully considered by this court, that we refrain from discussing them further. It is sufficient to say that they are now the settled law of this State. Lesan v. Railroad, 77 Maine, 85; State v. Railroad, 77 Maine, 538; State v. Railroad, 76 Maine, 357.

The evidence in this ease shows that the crossing where the deceased was injured ivas in one particular peculiarly dangerous. It was at the northerly end of a cut, and between the cut and the road leading westerly from the crossing, were high land and other obstacles, which would prevent one approaching from the west from seeing a train coming from the south for a considerable distance before reaching the crossing. This would make it the traveler’s duty to listen, and to listen carefully and attentively. To do this, if riding in a sleigh, and especially if riding in a sleigh with bells attached, it would be necessary to stop his horse. For surely he could not listen carefully and effectually' without stopping his horse, and thus stilling the noise of his own team. And yet the deceased did not observe this caution. The evidence shows that he approached the crossing where he was injured, in a sleigh, with bells attached, his horse trotting. He did not stop his horse — he did not even reduce the speed of his horse to a walk. The result was such as might reasonably have been apprehended. Just as his horse’s head reached the crossing-, a train of cars which had been concealed from his view shot out of the cut and on to the crossing directly in front of him. When the train had passed, he was found lying within a few feet of the track, and, if not wholly unconscious, so badly injured that he was unable to speak, and he died within half an hour. Just how he was struck does not appear. The tracks of his horse and of his sleigh indicate that when the train shot on to the crossing in front of him, his horse turned quickly to the left, and that the momentum of the sleigh caused it to tip toward the track, and that the deceased was thrown out and fell so near "to the track that some part of the passing train struck him and inflicted the injuries of which he died. Neither the horse nor the sleigh was struck,— at least no injuries were found upon either. But the driver was found, after the train had passed, fatally injured, as already stated. We can not doubt that if the deceased had stopped his horse at a proper distance from the crossing, so as to still the noise of his own team, and had then listened, he would have become aware of the near approach of the train, and the accident would have been avoided. He did not do so. We think the omission was negligence — contributory negligence,— and that an action for the injury can not be maintained.

Having come to a conclusion favorable to the railroad upon the motion to set aside the verdict, it is unnecessary to consider the questions raised by the exceptions. But perhaps we ought to add that the counsel for the railroad contend strenuously that the road has been guilty of no wrong; that the crossing where this accident happened was a mere farm crossing; that the deceased in attempting to use it was a trespasser; and that the railroad was under no obligation to signal the approach of its trains to this crossing by either bell or whistle, and especially that it owed no such duty to the deceased. But upon this branch of the case we express no opinion.

The motion is sustained, and the verdict set aside.

Peters, C. J., DaNEorth, Libbey, Emery and Foster, JJ., concurred.