MAINE SUPREME JUDICIAL COURT. George H. MARDEN

tance that a car in sight, moving at a prop- | End Street R. Co. 158 Mass. 305, 33 N. E. er rate of speed, and under proper man- 523; Driscoll v. West End Street R. Co. 159 agement, could have been stopped before Mass. 142, 34 N. E. 171. reaching the crossing, and saw no car, he was justified in crossing, or attempting to cross, the track.

Creavin v. Newton Street R. Co. 176 Mass. 529, 57 N. E. 994; Chaffee v. Boston & L. R. Corp. 104 Mass. 108; Williams v. Grealy, 112 Mass. 79; Duggan v. New England R. Co. 172 Mass. 337, 52 N. E. 519; Carlson v. Lynn & B. R. Co. 172 Mass. 388, 52 N. E. 520; Lahti v. Fitchburg & L. Street R. Co. 172 Mass. 147, 51 N. E. 524; Kelly v. Wakefield & S. Street R Co. 179 Mass. 542, 61 N. E. 139.

Plaintiff's negligence, if any, was not a contributory cause. If defendant's car had been traveling at proper speed it could and should have been stopped.

Page v. Bucksport, 64 Me. 53, 18 Am. Rep. 299; O'Brien v. McGlinchy, 68 Me. 557; Pollard v. Maine C. R. Co. 87 Me. 55, 32 Atl. 735; Flewelling v. Lewiston & A. Horse R. Co. 89 Me. 594, 36 Atl. 1056; Atwood v. Bangor, O. & O. T. R. Co. 91 Me. 400, 40 Atl. 67; Conley v. Maine C. R. Co. 95 Me. 149, 49 Atl. 668; Ward v. Maine C. R. Co. 96 Me. 145, 51 Atl. 947; Cooley, Torts, 2d ed. p. 816.

The conduct of the motorman should be influenced by the fact that the vehicle is covered.

Tashjian v. Worcester Consol. Street R. Co. 177 Mass. 81, 58 N. E. 281.

Messrs. J. C. Stewart, Emery & Sims, and O. D. Baker for defendant.

Spear, J., delivered the opinion of the court:

This is an action on the case for negligence, resulting from a collision between the plaintiff's cart and the defendant's electric car. The case shows that the plaintiff, on the 15th day of June, 1901, was driving a covered butcher's cart along a public street in the town of Kittery in an easterly direction, parallel with the defendant's road, about 3 feet northerly thereof; the track being on the southerly side of the road. The highway and the track descend quite sharply towards the east, the grade being about 6 feet in 100. At the bottom of the grade, a cross-street called “Williams avenue" runs substantially at right angles and southerly from the highway on which the plaintiff was driving. When the plaintiff reached the mouth of Williams avenue he attempted to turn his team into it, thereby squarely crossing the defendant's rails. While crossing the track the front part of the off hind wheel of the plaintiff's cart was struck by the defendant's car, and the injuries were produced of which the plaintiff complains. After a long trial, involving more than 250 pages of testimony, the jury returned a verdict for the plaintiff of $1,103.73. The case comes up on motion to set this verdict aside, as against the law and the evidence. The real issue to be considered is whether the

An electric car has no paramount right of way over pedestrians or other vehicles at street crossings, but the rights of each are equal. Joyce, Electric Law, § 589; 23 Am. & defendant was guilty of negligence with Eng. Enc. Law, pp. 992, 1028. respect to the speed with which it was run

Due care of the plaintiff is a question of ning its car at the time the accident ocfact for the jury.

curred, and whether the plaintiff was guilty Hobbs v. Eastern R. Co. 66 Me. 575; of contributory negligence. The evidence Plummer v. Eastern R. Co. 73 Me. 591; upon the one side and the other upon the Warren v. Bangor, O. & O. T. R. Co. 95 point of speed is conflicting; the plaintiff Me. 118, 49 Atl. 609; Treat v. Boston & and some of his witnesses contending that L. R. Corp. 131 Mass. 371; Robbins v. the car was running from 15 to 20 miles Springfield Street R. Co. 165 Mass. 30, 42 an hour down the grade towards the crossN. E. 334; LeBlanc v. Lowell, L. & H.ing, while those of the defendant assert the Street R. Co. 170 Mass. 567, 49 N. E. 927; Kelly v. Wakefield & S. Street R. Co. 179 Mass. 542, 61 N. E. 139.

Negligence of the defendant, and whether
or not it was the proximate cause of the
collision, are questions of fact for the jury.
Atwood v.
Bangor, O. & O. T. R. Co. 91
Me. 400, 40 Atl. 67; Allen v. Boston & M.
R. Co. 94 Me. 402, 47 Atl. 917; Conley v.
Maine C. R. Co. 95 Me. 149, 49 Atl. 668;
Ward v. Maine C. R. Co. 96 Me. 145, 51
Atl. 947; Griffin v. Boston & A. R. Co.
148 Mass. 143, 1 L. R. A. 698, 12 Am. St.
Rep. 526, 19 N. E. 166; Kerrigan v. West

car was moving at a rate of only 4 or 5 miles an hour. There was also testimony on the part of the plaintiff bearing upon the question of speed, tending to show that the cart and horse were thrown bodily in the air when the car struck them, the cart some 40 feet, and the horse half that distance, and that the car itself ran from 150 to 200 feet beyond the center of the crossing before it could be stopped, although the motorman claims that he did all in his power to check the car in the quickest possible manner after he discovered that the plaintiff was about to cross the track in

front of it. In finding the defendant | said, in Briggs v. Lewiston & A. Horse R. guilty, the jury must have come to the con- Co. 79 Me. 367, I Am. St. Rep. 316, 10 Atl. clusion that it was running its car at the 48, that "the laying down rails in the time of the collision at an unsafe and un- street, and the running street cars over reasonable rate of speed. them for the accommodation of persons de But the defendant says, admitting its siring to travel on the street, is only a later negligence as found by the jury, it is not mode of using the land as a way,-using guilty, because the plaintiff's own testi- it for the very purpose for which it was mony, allow it to be true, clearly discloses originally taken. It may be a change in the the fact that by his own negligent acts he mode, but it is not a change in the use. contributed to the accident which caused The land is still used for a highway." his injuries. Whether the plaintiff, in his This rule of law applies equally whether connection with the accident, was guilty the motor for propelling the car is a horse, of contributory negligence, assuming the steam, or electricity. It is apparent, thereguilt of the defendant, may depend in a fore, that the electric cars, which are now large degree upon the duty which the de- becoming of very common use, not only in fendant, under the particular circumstances our cities, but in our villages and country in this case, owed to the plaintiff. This towns, are operated for the most part withconsideration involves a question with re- in the limits of the legally located highspect to the relative rights and duties of ways, as said in Benjamin v. Holyoke Street electric cars and vehicles while concur- R. Co. 160 Mass. 3, 39 Am. St. Rep. 446, 35 rently approaching and passing over public N. E. 95, where "the use of the street for street crossings. The law upon this subject electric cars and by the general public was seems to be well settled in many states. concurrent; and the defendant was bound, While the contention has been made that a in using the street, to have reference to its person approaching an electric road with reasonable use by others." Unlike steam the intention of crossing the track should cars, the electric car runs, or may be run observe that same degree of watchfulness at times, through streets crowded with and care as when attempting to cross a people and vehicles, and therefore, instead steam road, it is readily obvious that the of being vested with the right to run at a cases are entirely dissimilar. The steam rapid rate of speed, they are required to road is invariably possessed of a private make a reasonable use of the streets, conroadbed, protected by law, and vested with | sistent with the rights of other persons the right to punish as a trespasser any and vehicles who may occupy the streets in person who may invade its property out- conjunction with them. Upon this point, side of that part of its premises made pub- the court, in Driscoll v. West End Street lic for the prosecution of its business. It R. Co. 159 Mass. 145, 34 N. E. 172, holds is also permitted by law to propel its trains that "the drivers and conductors of street at a tremendous rate of speed, so that it railway cars, whatever the motive power, is impracticable, if not impossible, to stop have in general the same rights and duties them quickly or within a short distance. with reference to other vehicles crossing The law recognizes these facts, and not their course that the drivers of omnibuses only for the protection of the individual bave, for example, or that the driver of who may undertake to cross a steam rail- any other vehicle has. O'Neil v. Dry Dock, road track, but for the safety of the many | E., B. & B. R. Co. 129 N. Y. 125, 26 Am. who may be riding in the public coaches, requires the individual, when he approaches the passageway of such an engine of destruction, within a proper distance of the track, to look and listen, not only with his eyes and ears, but with his mind, to dis-ulation by law the right of each is equal. cover whether a train is approaching. The law makes it imperative for travelers to do this, and a failure to comply with this law presumes them to be guilty of contributory negligence, if they are injured by a collision with a passing train. This is undoubtedly a wise and judicious law in its application to steam roads, but it should not be fully applied to the use of electric and other street railroads.

An electric road is installed and operated upon a principle entirely different from that of the steam road. Our court has

St. Rep. 512, 29 N. E. 84. In Com. V. Temple, 14 Gray, 69, 75, it is said: 'Where the entire public, each according to his own exigencies, has a right to the use of the highway, in the absence of any special reg

.. Each may use it to his own best advantage, but with a just regard to the like right of others." See also Newark Pass. R. Co. v. Block, 55 N. J. L. 605, 22 L. R. A. 374, 27 Atl. 1067. But a reasonable use must be measured by the relative facility with which cars and other kinds of vehicles are able to move about, with respect to one another, in the streets. It must be recog nized that cars are confined to a track, and are unable to turn to the right or to the left; that they are permitted to occupy the streets for the purpose of facilitating travel;

the footing of steam railroads. Whatever may be the law as to the latter, there is great difference between the two cases. Electric cars are far more manageable and more quickly stopped than trains upon steam railroads."

ten constituted negligence and contributed | tended to embody a statement of the rights to the accident. Again, it is held in Ben- of electric cars, irrespective of practice, and jamin v. Holyoke Street R. Co. 160 Mass. to put street railways on very nearly 4, 39 Am. St. Rep. 446, 35 N. E. 95, that "the court rightly refused to instruct the jury that a mere failure to look would prevent her from recovering. This has been so held even in cases of collision. [Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 33 L. R. A. 122, 55 Am. St. Rep. 629, 34 Atl. 1094;] Shapleigh v. Wyman, 134 Mass. 118; French v. Taunton Branch R. Co. 116 Mass. 537. The question was left to the jury, with proper instructions." In Hall v. Ogden City Street R. Co. 13 Utah, 243, 57 Am. St. Rep. 733, 44 Pac. 1046, it is held: "Persons traveling on a public street along or across a street railway track are not held to the exercise of the same degree of care and precaution as they are when traveling along, or upon, or across, an ordinary steam railroad."

In Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 33 L. R. A. 122, 55 Am. St. Rep. 629, 34 Atl. 1094, we find the rule stated in this way: "It may be said with reference to this request to charge that the proposition that one, to be in the exercise of due care, must look and listen before crossing a steam railway, is well established; but this duty does not apply with equal force to one in crossing the tracks of a street railway."

The duty imposed upon street cars when approaching public street crossings also clearly shows that the same rule with respect to such crossings cannot be invoked for both electric and steam cars. The very fact that the law, as far as we have been able to discover, almost universally holds that, upon the approach of public street crossings, the rights of street cars and vehicles are equal, and that neither has a paramount right over the other, necessarily modifies the rule applicable to the approach of steam car crossings.

If it was not incumbent upon the plaintiff, as a matter of law, to look and listen, what was the duty of the defendant to the plaintiff in the management of its car in approaching a public crossing in conjunc tion with the plaintiff? We can readily see, if the law gave the defendant an abso lute right of way, to the seclusion of all else, like a steam car, and alɛo required the plaintiff to look and listen, and, if he saw a car coming, however far away, and was injured, made him guilty of negligence, and, if he did not see the car, made him guilty for not seeing it, that the defendant could run its cars at almost any rate of speed, however negligent, without being chargeable with liability, on account of necessary contributory negligence on the part of the plaintiff.

Wendell v. New York C. & H. R. R. Co. 91 N. Y. 429, holds: "The rules of conduct which should govern the approach of travelers to crossings over street railways, or in the track of vehicles whose rate of progress is under the control of their drivers, are necessarily quite different from those applicable to the crossing of the track of steam railroads, whose trains traverse vast But under the above principles of law, distances, carrying great burdens, and mov-applicable to the reasonable use of the highing with a momentum necessarily destructive to bodies with which they come in contact." This case was against a steam railway company, and the above quotation is employed to show the distinction between the rights and duties of steam and electric roads.

It is said in Evansville Street R. Co. v. Gentry, 147 Ind. 408, 37 L. R. A. 378, 62 Am. St. Rep. 423, 44 N. E. 311: "The rules that govern as to the crossing of steam railroads by travelers upon the highway are not fully applicable to street railroad crossings in cities. The rule, therefore, to stop and look and listen, cannot apply, as it does to the crossing of a steam railroad track." In White v. Worcester Consol. Street R. Co. 167 Mass. 43, 44 N. E. 1052, Mr. Justice Holmes, as late as 1896, stated the proposition in this way: "But we suppose that the request was in

way by electric cars, and to the duty of travelers in their relations with them, we think the safe rule to lay down with respect to the management of electric or other motor cars at street crossings is this: That the motorman, when approaching a public street, shall be held to anticipate that any person approaching such junction from either side may turn his team into it, and shall then exercise all due care to have his car under such control as to be able to stop it at the crossing if necessary to avoid an accident. This rule places upon the railroad using the highway only that degree of care that is commensurate with public safety and with a reasonable use of the road. It is also well-settled law. And it is proper to here observe that the decisions impose a special duty upon cars operated in the streets when approaching street crossings,— a duty which, instead of clothing them with