Flewelling v. Lewiston & Auburn Horse Railroad , 89 Me. 585 ( 1897 )

Peters, C. J.

We apprehend that electric street cars have, in a qualified way at least, the right of way as against persons on foot or traveling with carriages and teams in the same manner as ordinary steam railroads have. And all persons passing on foot or traveling by the common methods on the highways should carefully observe tbe movements of tbe street cars and leave them an unobstructed passage as well as they reasonably can.

But great care must also be observed by conductors and drivers, or motor-men, upon the cars to see that no injury be caused by themselves to persons or teams. Street railroads are granted very great privileges out of the public right, and their treatment of the public must be reasonable in return; so that when a person or a team, through accident or mis judgment or for any cause, be caught in a position of any peril by coming in collision or close contact with the cars, it is the duty of those who are managing the cars to use all possible effort, by slackening the speed of a car or stopping it altogether, in order to avoid injury. If a horse driven by a traveler appears to be restive or refractory at the sight of a moving car the movement of the car should be managed in such a way as to relieve, if possible, the traveler in his dilemma. For these reasons, as well as for the general safety of passengers within and persons outside of the cars, the rate of speed should be reasonable according to circumstances.

The city ordinance of Lewiston limits the cars of this road to a speed of five miles an hour.

On both points to be considered, more especially on the second, the case in hand is a somewhat close one. The plaintiff contends that the car, with which his horse and carriage collided, was running at the time with an extraordinary and reckless rate of speed. This position of fact, as maintained by the plaintiff, is strongly contested by the defendant, and whilst there is much testimony bearing on this contention pro and con, we cannot very well assume the decision of the question ourselves and determine that the jury committed a mistake. The implication of the verdict is, that the unreasonable speed of the car caused or increased the fright of plaintiff’s horse, thereby causing the accident by which the plaintiff received his very serious injury.

The more doubtful question, perhaps, is whether or not the plaintiff was himself guilty of some recklessness and carelessness which contributed in causing the injury. Any person driving a horse, on the street, especially an uncertain and unbroken animal, when likely to meet a car, should exercise very great care and prudence so as to cope with the occasion with safety, and, if he fails to do so, he enters on a reckless experiment at his own risk. At the same time he is not to be debarred from reasonable opportunities in a reasonable manner to exercise his horse, young or old, spirited or' dull, in the presence of either stationary or moving cars, in order to accustom his horse to them if he can.

The horse driven by the plaintiff when he was injured was but four years old. But his driver was an experienced and fearless horseman, and he says that during the seventeen days he had owned him prior to the accident, he had been driven frequently by the cars without his showing any sign of fear or fright, and was a horse of good natural disposition.

The defense strongly urges that he could have and should have turned off into a cross street when his horse began to misbehave, and that in that way there was an easy opportunity to have avoided the collision; and the plaintiff explains his conduct in that respect upon his theory of the situation.

Although there is force in the position of the defense, still we hardly think we should overrule the implied finding of the jury on this point even, and so we therefore feel constrained, all things considered, to allow the verdict to stand.

Motion overruled.