Lubin v. Benton & Fairfield Railway

103 A. 14, 117 Me. 556, 1918 Me. LEXIS 29

• Court: Supreme Judicial Court of Maine
• Decided: March 11, 1918
• Status: Published

Opinion

A careful study of the testimony in this case fails to reveal any sufficient evidence of liability on the part of the defendant. The allegations in the writ are reduced in the testimony to the single charge of incompetency of an employe of the defendant, through deafness, and a want of due care on the part of the defendant in failing to discover such incompetency. The plaintiff was a brakeman on a train of defendant, consisting of an electric shifter, and empty freight car. The alleged incompetent servant was motorman.

While under the familiar rules of law, we think the plaintiff has failed to sustain the burden that the defendant, under the circumstances of the case, was guilty of negligence in failing to discover the defective hearing of this motorman, there is another undebatable reason why the plaintiff cannot recover. If we assume the motorman to be deaf and incompetent, to the extent claimed by the plaintiff, we utterly fail to find any casual reía tion between the motorman’s deafness and the plaintiff’s injury. In other words, there is a failure of evidence to show that the deafness had anything to do with the accident. As it can serve no useful purpose to analyze the testimony upon a question so plain as this seems to be, without further discussion, we think the entry must be made: Motion sustained. New trial granted. Weeks Weeks, for plaintiff. W. R. Pattangall, Frank E. Brown, and Herbert E. Locke, for defendant.