McDonough v. Grand Trunk Railway Co. , 98 Me. 304 ( 1903 )

Per Curiam.

1. Evidence drawn out by cross-examination of the plaintiff’s witnesses, as well as that contained in a deposition read by the plaintiff though taken by the defendant, is part of the plaintiff’s evidence and if uncontradicted is to be taken as true on a motion for an order of nonsuit.

2. In an action upon tbe statute of 1891, chap. 124, the administrator must affirmatively prove that the deceased was free from contributory negligence, the same as in an action by the deceased himself had he survived.

3. When such evidence shows that a railroad switchman, eighteen years of age and of experience in switching cars in railroad yards, saw that an old-fashioned draw-bar (then allowable) on a freight car was loose and out of order and was expressly notified by his foreman, that it was loose and held by a chain and that he should look out for it when undertaking to couple it to another car, and notwithstanding such knowledge and caution he placed himself in such a position that he must necessarily be injured through the defect in the draw-bar, the evidence fails to show that he was free from contributory negligence.

Enoch Foster and O. EL. Mersey, for plaintiff. O. A. and L. L. Might, for defendant.

Exceptions overruled.