65 Vt. 126 | Vt. | 1893
If the defendant’s evidence had not been disputed, that as soon as the Delaware & Hudson train had backed from the crossing the deceased, in disregard of the flagman’s signal and command to stop, drove across the D. & H. track, and then, with the defendant’s locomotive in view, attempted to pass over the twenty-three feet space and the track of the defendant, taking the risk of being struck by the defendant’s locomotive before he could reach the east side of the track upon which the locomotive was running, there would have been good ground for the motion for a verdict. But the evidence upon this subject was conflicting. While the defendant’s tended to show these facts, evidence introduced by the plaintiff tended' to show that the flagman signaled and told the deceased to cross the first track, and that he did not attempt to stop him until he had entered upon' the space between the two tracks and his horse had passed onto the track of the defendant.
It was a controverted question whether the deceased crossed the D. & H. track of his own volition and against the flagman’s admonition, or, with the other carriage that was standing there waiting to cross, was signaled by the flagman to pass over that track.
If, seeing the danger, he took the risk and lost, his negligence contributed to the happening of the accident, and as matter of law no recovery can be had. On the other hand, if the deceased was in the space between the tracks in obe
The plaintiff had a right to have the case considered in view of the evidence which she -had produced. Her evidence tended to show that the bell on the defendant’s locomotive was constantly rjnging, that the brakeman on the D. & H. train, seeing the danger, shouted to the engineer on the defendant’s locomotive, that the locomotive on the freight train whistled, so there was considerable noise and confusion. According to this evidence the deceased may have understood, and as a prudent man have had a right to understand, that he was being urged to hasten forward. The locomotive of the D. & H. train had stopped as soon as it had cleared the crossing so as to be almost directly behind the deceased; the horse and wagon would have reached nearly across the space between the tracks, and the deceased may reasonably have thought in the moment of confusion that his only safety was in crossing the track of the defendant. The fact that he was urging his horse, together with the fact that the natural instinct of men is to avoid rather than encounter danger, renders it.probable that the deceased supposed that the first signal to advance was being repeated and emphasized by the flagman rather than being .countermanded by him. He may have been in such a state of mind from the peril in which he found himself as to have omitted to do what he otherwise would have done, and been legally excusable for such omission.
Upon the plaintiff’s evidence a verdict could not have been directed for the defendant. The court-had no right to establish a standard of ordinary prudence and turn the case out of court, because in his own judgment the conduct of the deceased fell short of that standard. He could not have withdrawn the question of fact from the consideration of the jury even though he was fully convinced that the inference
The question of negligence must be submitted to the jury as one of fact, not only when there is room for difference of opinion between reasonable men as to the existence of the facts from which it is proposed to infer negligence, but also when there is room for such a difference as to the inferences which might be drawn from conceded facts. When this is the case the issue must go to the jury, no matter what maybe the opinion of the court as to the value of the evidence or the credibility of the witnesses. It is for the court to say whether there is any evidence in the case from which negligence might reasonably be inferred, and then it is for the jury to say whether, from the facts thus proved, negligence ought to be inferred. 1 Shear. & Red. on Neg., § 54.
To justify the withdrawal of a case from the jury, the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts would have warranted a contrary conclusion, and that a verdict of the jury the other way would have been set aside as against evidence. Stackus v. N. T. C. & H. R. R. Co., 79 N. Y. 464.
The leading cases were examined by Rowell, J., in Worthington v. Central Vt. R. R. Co., 64 Vt. 107, and these propositions were formulated — that when the law prescribes what shall constitute negligence, orjwhen the act relied upon to show negligence is isolated, then negligence becomes a question of law; but when the standard of negligence is not prescribed, and there is a combination of facts and circumstances relied upon to show negligence, the question becomes
In this case the evidence was not so decisive of contributory negligence as to preclude a difference of opinion in different minds upon that subject. There was a combination of circumstances from which no legal inference of negligence could be drawn. The motion to direct a verdict was therefore properly overruled.
It appears that the jury agreed upon a general verdict for • the plaintiff, sealed it up, separated for the night, and brought it into court the next morning. After they had rendered it the court asked the foreman this question: “Did you find the negligence was in reference to the negligence of the flagman?” to which the foreman answered, “In reference to the negligence of the flagman.” The clerk then, by direction of the court, wrote out this special verdict: “The jury on their oath say that the negligence of the de-. fendant causing the injury arose from the action of the flagman,” which the foreman signed. The court then read the verdict to the jury and inquired if it was their verdict, to which the foreman replied that it was, while some of the jurors “nodded assent,” and none of them dissented. This was in open court, and the defendant did not ask that the jury be inquired of more fully nor that they should be polled.
The inquiry by the court called for no further deliberation by the jury. Their answer was authoritative information to the court as to a finding which they had already made upon one of the three issues submitted to them in the charge. When this was reduced to writing and signed by the foreman it became a part of the verdict, and the findings upon the other questions were immaterial. In this action of the court there was no error.
The special finding renders it unnecessary to consider
Judgment affirmed.
