92 Vt. 454 | Vt. | 1918
During the night of September 30, 1915, five colts belonging to the plaintiffs escaped from the pasture adjoining the defendant’s railroad by passing through an open gate onto the track, and were there killed by the defendant’s train. It was conceded below that the value of the colts was $700, and after the trial a plaintiff’s verdict for that amount was returned. At the close of the evidence, the defendant moved for a verdict on the grounds: (1) That there was no evidence in the case tending to show that any faulty construction of the gate or its appurtenances was the proximate cause of the injury complained of; (2) that there was no evidence in the ease tending to show how, when, or by whom the gate was opened so as to allow the colts to escape; (3) that, assuming that the evidence warranted an inference that the gate and its appurtenances were improperly constructed, there was no evidence in the case tending to show that such defects were the proximate cause of the injury complained of; and (4) it was not permissible to allow the jury to act upon mere surmise or conjecture in determining how the gate was opened. This motion was overruled and the defendant excepted.
By P. S. 4453 (G. L. 5195), the defendant was required to build and maintain a good and sufficient fence between the road and the plaintiffs’ pasture. The gate through which the colts escaped was a part of the fence so required, and it was the de
One of the plaintiffs testified that the gate was closed at about five o’clock of the day before the accident. The character and location of the pasture made it improbable that any person would have occasion to use the gate between that time and the time when the colts were killed. The character of the soil inside the gate was such that foot prints would naturally be discoverable if a person had passed through the gate during or about the time named. No such tracks were to be seen, though the ground was examined the next morning. In these circumstances, the question of the proximate cause was for the jury. It is. true that one of the trainmen testified that he went through the gate into the pasture immediately after the accident, and that his tracks were not seen by the witnesses who examined the place. But this is not conclusive against the plaintiffs, and was nothing more than a circumstance to be weighed and considered by the jury. The suggestion that the evidence shows that third persons made use of the gate is without force. The evidence coming
The defendant excepted “to that part of the charge in which the court held that the defendant was under a legal duty to keep the gate closed." In connection with this exception, the defendant insisted that if it had built and maintained a good and sufficient fence, including the gate and its fastenings, it had discharged its full duty and was under no obligation to see to it that the gate was kept closed.
Any reference to this duty was outside the issue. The only insufficiency in the fence or gate charged in the declaration was that “the latch of said gate, whereby it was hooked and closed, was fastened to the pasture side of said gate and was loose.” There was no allegation suggesting that the defendant was at fault in any other respect. So no other shortage of duty was involved. Seeley v. Cent. Vt. Ry. Co., 88 Vt. 178, 92 Atl. 28. The rule is that it is error to submit to the jury a basis for recovery outside the pleadings. Smith v. C. V. Ry. Co., 80 Vt. 208, 67 Atl. 535. But the exception to this instruction was not put upon this ground, but upon the ground that it embodied an erroneous statement of law. The court did not charge in express terms-that it was the defendant’s duty to keep the gate closed; but it was the plain import of the instruction that this duty rested on the defendant, and that its failure therein would amount to a failure to “maintain” a sufficient fence at that point. This view is supported by courts of great respectability. Nevertheless we do not think it is. sound. The gate was provided for the use and benefit of the plaintiffs. The defendant made no use of it and derived no advantage from it. We cannot regard an open gate as an insufficiency in the fence. If it and its fastenings were “good and sufficient” within the meaning of the law, the duty of keeping it closed was upon the plaintiffs, and the fact that it was found open is not enough to impute negligence to or establish liability on the part of the defendant. This view seems to be supported by the weight of authority and harmonizes better with our statutory provisions. Megrue v. Lennox, 59 Ohio St., 479; 52 N. E. 1022; Swanson v. Chicago, M. & St. P. R. R. Co., 79 Minn. 398, 82 N. W. 670, 49 L. R. A. 625 ; Adams v. Atchinson, T. & S. F. R. R. Co., 46 Kan. 161, 26 Pac. 439; Diamond Bride Co. v. N. Y. Cent. & H. R. R. R. Co.,
The instruction was manifestly harmful, and the exception to it will have to be sustained unless it was waived or vitiated by what followed. After the exception was taken, the court gave a supplemental charge on this and other subjects. At the close of this supplemental charge, the defendant attempted to except, saying merely, “May our exception be noted to the supplemental charge?” To which the court replied, “Yes.” It is apparent that this exception was not sufficiently explicit to be available, for it did not point out which of the several matters covered it referred to. The general rule is that, when a supplemental instruction is given on a point excepted to in the original charge, the exception must be renewed or the supplemental instruction will be regarded as satisfactory and the error, if any, cured. Davis v. C. V. Ry. Co., 88 Vt. 460, 92 Atl. 973. But here the supplemental charge was not a correction or modification of the original charge, but a reiteration of it. In the circumstances shown, the defendant is entitled to the benefit of his original exception, though it failed in its attempt to renew it.
Judgment reversed and cause remanded.
