Citation Numbers: 122 Me. 130
Judges: Cohnisii, Cornish, Deasy, Piulbrook, Spear, Wilson
Filed Date: 12/25/1922
Status: Precedential
Modified Date: 1/12/2023
This is an action of tort for personal injuries sustained by the plaintiff on May 18, 1921, at Auburn, and is brought under the Federal Employers Liability Act of April 22, 1908, U. S. Comp. Stat. Vol. 8, Secs. 8657-8665. The applicability of that act is admitted. The alleged negligence of the defendant resulted in injuries which necessitated the amputation of the plaintiff’s legs, leaving a stump of seven inches on the right and five inches on the left, measuring on the inside. The defendant introduced no testimony so that the evidence offered by the plaintiff stands uncontradicted. The jury having returned a verdict for the plaintiff in the sum of $29,965.18, the case is before the Law Court on defendant’s motion for a new trial on the customary grounds.
The outline of the facts may be briefly stated. The plaintiff is twenty-three years of age. He had worked for the defendant for nearly three years, under one Carson, a signal inspector with headquarters at Deering. He had been in Auburn five days working as a signal helper under one Getchell who was termed a signal maintainer and who was at the time his immediate boss. Another helper was David King'. About seven o'clock on the morning of May 18, 1921, these three took a gas motor hand car, such as are commonly used on railroads, from .the tool house at Lewiston and- started for Auburn. Their first stop was at the Adams Street crossing in Auburn where the section meii were replacing a broken rail. When the section men had completed their work King proceeded to bond the rail, that is to make the electric connection between the steel rails by means of a bonding wire, in order that the block system might operate. While there the block signal located a considerable distance to the westward of Adams Street toward Danville Junction, was reported to Mr. Getchell as out of order. Getchell thereupon despatched the plaintiff to go to Mr. Carson, the signal inspector in charge of that division and his superior, and who was then working'with a helper on another block signal, some little distance toward the east from the Adams Street crossing, and ask him to come down and see what was the matter with this westerly block signal. Prince delivered the message and Carson put his car on the track, and with his helper and the plaintiff started toward the point of trouble. The plaintiff got off the car at Adams Street. Carson and his helper proceeded on their way. Getchell himself in the meantime had started on foot westerly to the same point of trouble, and was around a curve, and not in sight, when Prince returned. After Prince had left on his errand, and before Getchell himself started toward the west, he said to King: “Dave, as soon as you get that bonded, come down.” When Prince returned from his errand King was at the Adams Street crossing alone. The bonding was nearly finished. Prince helped King for five minutes to complete the job. He then asked King what
1. Dependant’s Negligence.
The negligence claimed by the plaintiff is the act of Getchell in sending him with the car to the westward without giving any warning as to the due time of the approaching train. It is conceded that it was Getchell’s duty to know or inform himself as to the running time of trains and that the plaintiff as a helper was under his control.
The defendant strenuously resists the claim of negligence and says that Getchell gave no order whatever to Prince, that the only order he gave was to King, and that did not include Prince, nor direct King to take the car; that as Getchell had sole control of the car, neither King nor Prince had a right to place it on the tracks and run it; that in so doing they were both outside the scope of their employment and were mere volunteers, under the doctrine, of Moran v. Street Railway, 99 Maine, 127.
It is true that Getchell gave no direct orders to Prince, except to deliver the message to Carson and then to return to the Adams Street crossing, which he did. But that is not conclusive. It was competent for Getchell to give such orders or orders couched in such language as under all the circumstances would justify the plaintiff in believing himself included and also as authorizing the use of the car by both King and himself. And that is precisely what Getchell did, as an unprejudiced examination of the situation cannot fail to disclose. Getchell was working with his crew of two men upon the
At any rate it was1 a question of fact for the jury to decide whether under all the circumstances and considerations the plaintiff was a mere volunteer and outside of the scope of his employment, or a faithful servant within his ordered duties. They have sustained the plaintiff’s contention and we see no reason for disturbing it. Moran v. Street Railway, supra, has no application to this state of facts.
2. Contributory Negligence.
The only ground for this contention is that during the eight seconds which elapsed between the discovery of the on-coming train and the impact, the plaintiff did not conduct himself as the ordinarily prudent person under the same circumstances would have done, having due regard for the rights of others as well as of himself. In such an
3. Assumption op Risk.
Evidence on this point, is entirely lacking, and in fact this contention is not seriously urged by the defendant.
4. Excessive Damages.
This verdict of $29,965.18 is very large in amount, but the injuries were very grievous both in nature and extent, and required two operations. A trunk of a young man is left to go through life, with all the attendant losses, deprivations, and suffering both physical and mental. It is unnecessary to recite them. .The picture paints itself. While the award is huge it is not in our opinion so grossly extravagant as to require revision by this court.
Motion overruled.