Grows v. Maine Central Railroad

Dickerson, J.,

dissenting. This case is presented to us upon a demurrer to the declaration filed at the first term, and the decision is to be the same and have the same effect as if the ease were presented on exceptions.

The demurrer admits the facts alleged in the declaration, and the court are to determine from them, as pleaded, whether the plaintiff, as matter of law, is entitled to maintain this action. To maintain the suit, it is incumbent upon the plaintiff to allege due care on his part and negligence by the defendants. It is not pretended by the learned counsel for the defendants that the writ does not allege in general terms due care on the part of the plaintiff, but he argues that the specific allegations upon this point show such a state of facts as to authorize the court to declare, as matter of law, that there was contributory negligence on his part.

In addition to the general allegations of due care by the plaintiff, the declaration sets forth, in substance, that the plaintiff with a horse and team wagon was passing along an open way, crossed by the railroad upon the same level, which way people were accustomed to travel, and which was inclosed with fences on each side, and so narrow that teams could not be turned around without great difficulty, and that he had reached a point about seven rods *107 from the railroad crossing, and about, two and a half rods in a direct line from the railroad track, when the train approaching the crossing came in view about forty rods therefrom ; and that knowing he could not turn his team in the lane, and believing he could pass over the railroad crossing before the train would reach it, and that he could secure his safety in no other way, and supposing that the train was approaching at an ordinary rate of speed, urged his horse forward, driving him very rapidly, and used his utmost exertions to get his team over the crossing before the train should reach it, which he could well have done if the train had been going at an ordinary rate of speed, but that the train was moving at an unusually rapid rate of speed, and overtook him, and the engine struck his wagon before he had got over the crossing, dashed it in pieces, and inflicted severe injury upon himself and horse.

It is argued in defense, and held by a majority of my brethren, that the facts being admitted by the demurrer, the question whether the plaintiff was in the exercise of ordinary care, is one of law and not of fact. I cannot assent to this proposition, as an absol ute rule of law. Waiving the question of possible cases, I think the better rule, and that which accords with principle and authority is that, even when the facts are undisputed, the question of ordinary care is in general a mixed question of law and fact to be submitted to the jury under proper instruction. This is the law as administered in the early cases in this state, and recently affirmed in Webb v. Portland & Kennebec Railroad Co, 57 Maine, 117, 131.

I am aware that the court in Massachusetts, in certain railroad cases, have inclined to the doctrine contended for by the counsel for the defendants, but that line of decisions has not been followed by the court in this state, and is not in accordance with the recent decisions in the English courts, the courts in Pennsylvania, Michigan and other states, as well as the supreme court of the United States. Patterson v. Wallace, 28 Eng. L. & Eq. 48. Penn. Canal Co. v. Bentley, 66 Pa. St. 30.

In Detroit & Milwaukee Railroad v. Van Steinburg, 17 Mich. 99 , the court lay down the rule, as deduced from an extended analysis of the cases, that where the facts are disputed, or when *108 they are not questioned, but different minds might honestly draw different conclusions from them, the case must be left to the jury.

This seems to be the view the supreme court of the United States took of this question in Railroad v. Stout, 17 Wall. 657 . After theorizing in regard to extreme possible cases, the court say: “But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these intermediate cases that the opposite rule prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible impartial man would infer that proper care hadjnot been used, and that negligence existed; another man equally reasonable and impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education, and men of little education, men of learning, and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given, it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than one man does, that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge.”

In West Chester etc. Railroad v. McElwee, 67 Pa. St. 311, 315, the court say : “The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary care. In such cases, the measure of duty is not fixed but variable; under some circumstances a higher degree of care is demanded than under others, and when the standard shifts with the circumstances of the case, it is in its very nature, incapable of being determined, as a matter of law, and must be submitted to the jury to determine what it is and *109 whether it has been complied with.” Thus the rule of law adopted in this state, upon this subject, is not only sustained by the decisions of courts of the highest authority, but its rationale is susceptible of moral demonstration. It is believed that the true rule of law is, that when different men of equal intelligence and impartiality may honestly draw different inferences, and form different conclusions from the admitted facts, upon the question of ordinary care, the case should be submitted to the jury under appropriate instructions of the court in matters of law. This rule is explicitly affirmed and applied by this court in the recent case of Larrabee v. Sewall, 66 Maine, 376. I am unable to perceive why this doctrine does not apply with equal force in actions against railroad corporations. In that case, as in this, several alternatives were presented to the plaintiff by which she might fairly hope to avoid collision with-the defendant’s carriage; and the court held, upon solemn argument, that she could not be held guilty of contributory negligence, as matter of law, for adopting one, and not another, of the alternatives presented, but that such question was a question of fact solely for the determination of the jury. I cannot therefore avoid the conclusion that the opinion of a majority of my brethren in this case, is in direct conflict, and irreconcilable with the law as laid down in Larrabee v. Sewall. In my judgment the law does not sanction the withdrawal of the question of ordinary care from the jury in actions against railroad corporations, while it requires the submission of the same question to them, in actions between individuals; the law confides no such dispensing power in this court.

In passing from the law to the allegations in the writ it becomes obvious that this is not one of “the extreme cases,” referred to by the court in Railroad v. Stout, ante, whore the court would bo authorized to predicate contributory negligence, as matter of law, upon the facts admitted^ but rather a case where, in the language of the court, in Detroit & Milwaukee Railroad, v. Van Steinburg, ante, “different minds might honestly draw different conclusions from the admitted facts,” in which case the question must be determined by the jury. The plaintiff'was lawfully upon the road, and had a legal right to drive across the railroad track. *110 He was not in the violation of any duty imposed by positive law. Hpon the question, what did ordinary care require him to do, when he suddenly saw the danger that beset him, “different minds might honestly draw different conclusions.” Whether to dash on as he did, or to try and turn his team about in that narrow lane, or attempt to stop and hold it, so near the rapidly approaching train, were questions which might have been differently decided at that time by different travelers, of equal intelligence, sagacity and prudence, so much depended upon a duo estimate of the velocity of the train, and his distance from it, the fleetness of his horse, and his susceptibility of control, or the contrary, and his own temperament, activity and presence of mind, in the midst of sudden and imminent personal peril. Larrabee v. Sewall, 66 Maine, 376.

Upon the question of presence of mind, so to speak, in a sudden emergency, Wharton in his law of Negligence, § 30é, uses this language : “As a rule, therefore, we may say that a person is not chargeable with contributory negligence, who, when unwarned peril comes on him, suddenly acts wildly and madly. For persons in great peril are not required to exercise all the presence of mind and care of a prudent, careful man; the law makes allowances for and leaves the circumstances of their conduct to the jury.” If to the considerations to which I have adverted, we add the want of evidence, not necessary to be alleged in the declaration, but, nevertheless, material to the issue, such as the plaintiff’s age, weight and ability for quick decision and prompt action, I think it is apparent that the case is a proper one to be submitted to a jury. The situation required of the plaintiff a rapid survey of the whole field of danger, a speedy deduction of inferences, expert calculation, and instant choice of chances; and although we can never know what would have been the result if he had adopted the alternative of attempting to stop his team, or turn it around, yet it seems to me that it would be a reproach upon the law to hold him guilty of contributory negligence, as matter of law, for adopting the alternative that actually carried him within a single second of safety.

Nor do I think the other position taken by the counsel for the *111 defendants, and sustained by a majority of my brethren, ten able — - that the allegations of negligence in the declaration are insufficient in law, and should so bo pronounced by the court. These allegations are, running the train at an unusual rate of speed, giving no warning or signal of its approach, and not slacking its speed when the plaintiff came in view of it. The first allegation may or may not show negligence; it is allowable for trains to be run at an unusual rate of speed under certain circumstances and not under others ; whether allowable or not depends upon the positive provisions of law, and all the surrounding circumstances. It is not a sufficient answer to the first allegation that the statute makes nr provision in regard to the rate of speed to be o bserved by a train, in approaching such a crossing. Only a tithe of the duties devolved upon railroad corporations isspecifi cally enjoined by statute. A compliance with the requirements of the statute, by no means absolves such corporations from observing such other precautions as reasonable and ordinary care require under the circumstances of the case. This principle applies as well to the making of signals and slacking of speed when the train is approaching a crossing, as to the first allegation. Webb v. Portland and Kennebec, 57 Maine, 117.

The three fold negligence of the defendants is distinctly, and we think sufficiently stated, as the cause of the plaintiff’s disaster. Whether those allegations amount to negligence, is a mixed ques tion of law and fact to be submitted to the jury with proper instructions in view of all the evidence in the case. Whether due care required the conductors of the train to run it at a moderate rate of speed, when approaching the crossing, or to give warning of such approach, or to slacken its speed on that occasion, depends upon the usual amount of travel over the crossing, the opportunity for seeing the plaintiff, the provisions of the statute, if any, upon that subject and all the circumstances of the situation. From the admitted facts in this case different men of equal intelligence and prudence might honestly draw different inferences, and form different conclusions. One man might conclude that due care required of the . defendants the use of one, at least, or all of these precautions; another, *112 that it did not require either. In such a ease, it would be little short of tyranny in the court arbitrarily to interpose its fiat, and declare that the defendants are guiltless of all fault. The law, it is submitted, in its wisdom, rather invokes the aver age judgment of the jury on such occasions. I think the entry should be, Demurrer overruled, declaration adjudged good, action to stand for trial.

Barrows and Libbey, JJ., concurred in this dissenting opinion.