95 Vt. 523 | Vt. | 1922
Plaintiff’s intestate, Fred M. Fairbanks, late of .Springfield, Vermont, was killed in the nighttime of August 1, 1918, by being run over by an electric car on a bridge situated on the defendant’s road between Bellows Falls and Saxtons River. This action is brought to recover damages for the benefit
At the close of the evidence the defendant moved for a directed verdict on the grounds: (1) That the undisputed and unconflicting evidence shows contributory negligence on the part of the intestate; and (2) that there is no evidence tending to show negligence on the part of the defendant. The motion being overruled, an exception was noted for the defendant. There was also a motion to set aside the verdict, one ground of which was that “from all the evidence it appears that the decedent was guilty of contributory negligence.” The defendant briefs the question of contributory negligence generally without special reference to either motion. The plaintiff contends that the exception taken to overruling the motion for a directed verdict is not presented by the bill of exceptions, and that the exception to overruling the motion to set the verdict aside is not briefed, and so is waived. Both motions raised the same question, so far as they related to negligence on the part of the intestate. It cannot be said that this exception or that is waived by failure to brief, as the discussion applies as well to the one as to the other. However, in view of the possible effect upon the final disposition of the case here, it will be necessary to decide whether the question of error in denying the motion for a directed verdict is saved to the defendant.
The evidence, in the view most favorable to the plaintiff so far as it was conflicting, tended to show the following facts: Plaintiff’s intestate was forty-one years of age, in good health, and his sight and hearing were normal. The bridge where the accident occurred was on the defendant’s private right of way, a short distance westerly toward Saxtons River from Barber Park. This park is an amusement resort, which the defendant had operated for several years, and to which the public was invited. It was situated on the line of defendant’s railroad, and was also accessible by a public highway. On the night of the accident a dance was being held at the park. The intestate had carried a party from Springfield to the park in his automobile, going by the highway, and had returned to Bellows Falls for another party destined for the dance. Instead of driving by the highway to the park on the return trip from Bellows Falls, he parked his automobile in the yard of a house some distance westerly of the bridge, and with those who accompanied him set out for the park on foot, leaving the highway and following the railroad track toward the bridge. It was then about half past nine, and the night was dark and cloudy, so much so that it was difficult walking the track, especially after the bridge was reached. The bridge was 165 feet long, constructed of iron, with the usual timber and cross-ties of such a railroad bridge. For
The car in question was of the ordinary open type, with running boards on either side. It was 45 feet long over all, and was lighted by two rows of 16 C. P. electric lights on the inside of the roof. It had no headlight, though it was equipped so that such a light could have been installed. On the run in question it was scheduled to leave Saxtons River, two miles westerly of Barber Park, at 9.30, arriving at the park at 9.40, and was running on scheduled time. As lighted, the'motorman could see ahead in the dark only á short distance — some 10 or 15 feet. The motorman was watching the track ahead as the car crossed the bridge, but did not discover the persons on the track until about three-fourths the way across. On discovering them he did everything possible to stop the car. He applied the brakes and reversed the power, which brought the car to a stand about 74 feet from the point where the intestate was struck.
The defendant insists that the intestate was a trespasser, and bases its arguments on the question of its duty to him upon that assumption. The plaintiff does not seriously contend that such was not the fact, but claims that certain evidence respecting
There would seem to be little doubt that the question of the first'element of the doctrine of “last clear chance” was for the jury. The construction of the bridge was such that there was at best but slight opportunity in the darkness for the intestate to escape, after discovering his peril, except as he attempted to do. The ties rested on timbers running lengthwise of the bridge, and these in turn rested on steel floor beams several feet apart and not wide enough for very secure footing, even if they had been discoverable in the darkness. The ties outside the track did not afford a place of safety, as they were practically covered by the overhang of the car. Besides, the intestate was confronted with a sudden emergency, involving not only his own safety but that of his companion as well. On this evidence the jury might find that a time came when the intestate was powerless to save himself by the exercise of due care, while there still remained an opportunity for the defendant, in the exercise of such care, to avert the accident.
It follows that the evidence made a case for the jury under the doctrine of the "last clear chance,” and.that the intestate could not be held to be guilty of contributory negligence as a matter of law.
Giving these exceptions the scope claimed for them, error does not appear. It would not be necessary to allege that it was the defendant’s duty to maintain a headlight on the car. It is sufficient that the facts alleged show such a duty. Winifred Bros. v. Rutland R. Co., 71 Vt. 48, 42 Atl. 980. It is elementary that the facts from which the duty arises must be alleged so the court may see that the duty exists. Kennedy v. Morgan, 57 Vt. 46. But the duty inferable therefrom is a conclusion of law and need not be alleged.
Judgment affirmed.