82 Vt. 269 | Vt. | 1909
At the close of the plaintiff’s evidence, the defendant moved for a verdict on the grounds (1) that there was no evidence tending to show negligence on the part of the defendant, and (2) that the undisputed and uneonflicting evidence showed contributory negligence on the part of the intestate. The case is here on exception to the overruling of this motion. The facts herein stated appear from or are supported by the evidence.
The intestate, a man about seventy-two years of age, while driving across defendants’ railroad track at a highway crossing at West Berlin in the afternoon of May 18, 1905, was struck by defendants’ engine drawing the mail train, so-called, northbound, and instantly killed. The train was running at about schedule rate of speed, forty-five miles an hour. The depot at that place is a building about twenty-five feet in length and a little less than that in width. It stands sixty-two feet south of the crossing where the intestate was killed, wholly on the east
By section 3921 of Vermont Statutes, “If a person having control of a detached engine or an engine with a passenger train of cars attached, runs such engine or such passenger train into or through a passenger depot at a speed exceeding four miles an hour, he shall be fined ten dollars.” Counsel for plaintiff contend that as the train at the time in question was being run at a greater rate of speed than is permitted by this statute, if not negligence as a matter of law it must at least be a circumstance which constitutes some evidence of negligence on the part of the defendant, citing Kilpatrick v. Grand Trunk Railway Co., 72 Vt. 263, 47 Atl. 827, 82 Am. St. Rep. 939; same case, 74 Vt. 288, 52 Atl. 531, 93 Am. St. Rep. 887; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. 679; and other cases. Except that this section of the statute is applicable no claim is made that the speed of the train was excessive.
The law of section 3921 was first enacted in I860.- At that time there were in this State and hitherto have been passenger depots so constructed as to cover over the main tracks of the railroad, into and through which trains running on such tracks must pass. We think that statute was intended to apply only to such depots. It is difficult to see how the words “into or through” as there used can have reference to passenger depots of any other construction. “Into” is there used in the sense of inside of; within. It expresses entrance, or a passing from the outside of a thing to its interior parts. The word “through” means from end to end, or from side to side of; into or out of at the opposite, or at another point; between the sides or walls of; within; as to pass through a door, or to go through an avenue. See Webster’s International Dictionary.
It was conceded by the plaintiff in argument that all signals required by law and more were given on the train. When the engine was about half way between the whistling post for the crossing and the station the engineer, looking beyond the depot on its easterly side, saw the intestate on the highway driving toward the railroad. Thereupon he sounded a second whistle for the crossing. The team about the same time went behind the depot and was seen no more by the engineer until it was on the crossing in front of the engine.
It is argued that the engineer should have seen the team after it came in view on the westerly side of the depot before it went on the crossing and in season to have prevented the accident, and that a failure so to do is a circumstance from which a jury may infer negligence. We will assume, without deciding, this to be so and pass to the question of contributory negligence.
The undisputed evidence shows that the intestate’s senses of sight and hearing were good; that he was in good health and very active; that the day of the accident was warm and pleasant and there was nothing over his ears to prevent him from hearing; that the horse he was driving was twelve or thirteen years old,
The rule making it the duty of a traveller, nearing a railroad crossing, to look and listen for approaching trains, and to make such vigilant use of his sight and hearing in so doing as a careful and prudent man would make in the same circumstances was fully laid down in Manley v. Delaware & Hudson Canal Co., 69 Vt. 101, 37 Atl. 279, also in Carder v. Central Vermont R. R. Co., 72 Vt. 190, 47 Atl. 797, and need not be here repeated. In the latter case it is said that if by the vigilant use of his eyes and ears the plaintiff might have discovered and avoided the danger, and omitted such vigilance, he was guilty of contributory negligence; and that he was chargeable with such knowledge of the approach of the train as he might have ob
It is urged by the plaintiff that when the intestate’s horse' first came in view on the westerly side of the depot, it was visible to the engineer and would have been seen by him had he been in the exercise of requisite care, before the intestate, sitting twelve feet back from the horse’s head, could look past the depot and see the approaching train; that consequently the defendant had the last clear chance to avoid the collision; and that since the engineer was negligent in failing thus to see the team, this negligence was the proximate cause of the accident, and the negligence on the part of the intestate in driving on the crossing was remote and will not defeat a recovery.
Again assuming that the defendant was negligent in not thus seeing the intestate before he drove on the crossing, yet it does not follow that the last clear chance was with the defendant. On the contrary, the undisputed testimony of the witnesses who saw the accident shows that the intestate had an equal opportunity to avoid a collision. We have already noted the intestate’s negligence in driving on the track without first making proper use of his senses to ascertain whether there was approaching danger. So far as the evidence shows he did not look to see whether a train was coming or not until his horse was just stepping on the crossing, or its forward feet were on the plank of the crossing. The horse was still walking, was undisturbed by the noise of the train, and was under the complete control of the intestate. On seeing the train, the intestate at first partly stopped the horse, or pulled it back, as though to back up, and then urged it forward. At that time the accident could have been prevented by backing the horse three or four feet off the crossing to a place of safety. This the intestate had time to do, for in fact the team subsequently moved forward at a walk far enough to place the horse entirely over the crossing before the collision, by reason whereof it escaped injury. Thus it clearly appears that the intestate’s negligence was continuous to the
It follows that the motion for a verdict should have been granted.
Judgment reversed, and judgment for the defendant to recover its costs.