Sego v. Southern Pacific Co.

GAROUTTE, J.

Action for damages, brought by the father for the death of his son, defendant’s train having killed him at a highway crossing. Defendant relied upon contributory negligence, and at the conclusion of plaintiff’s evidence a nonsuit was granted. This appeal is taken from the judgment upon a bill of exceptions.

[406]

Por the purposes of this appeal, it will be assumed that deceased was guilty of contributory negligence in attempting to cross the railroad track in front of the moving train. It will also be assumed, for the purposes of the appeal, that defendant was guilty of negligence, by reason of the manner in which it was running its train at the place of the accident, in this, that the speed was excessive, that the crossing was one greatly used by the traveling public, and that no flagman was in attendance. In the face of the two concessions suggested, involving the negligence of the defendant and the contributory negligence of the párty killed, plaintiff claims that defendant was guilty of wanton and willful negligence in running its train at an excessive rate of speed at the place where the accident occurred, and therefore deceased’s contributory negligence does not defeat a recovery.

Whatever the law upon this question may be in some of the other states of the union we are not specially concerned, for in this state it may be said to be well settled. This question was directly involved in

O'Brien

v.

McClinchy,

68 Me. 55, where the court said: “Generally, it is a defense to an action of tort that the plaintiff’s negligence contributed to produce the injury. But in cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant. This rule applies usually in eases where the plaintiff or his property is in some position o"f danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot and the defendant can prevent an injury. Lord Ellenborough, in