93 Vt. 340 | Vt. | 1919
The accident out of which this action arose is unique in the annals of highway crossing accidents in this State. The action is for damage to plaintiff’s automobile occasioned by running into a freight train that was standing at a grade crossing on Church Street in the village of Bethel on the line of defendant’s railroad. The accident occurred about'2:45 a. m., August 30, 1917. Church Street crosses the railroad nearly at right angles, the railroad at that point running substantially north and south. The highway approaching the railroad from the west descends quite a steep hill, with buildings and banks on either side. The road is straight and the crossing visible to one approaching from the west for at least 250 feet. About 450 feet south of the crossing was a switch controlling a “passing track” that extended thence south. At the time in question, defendant’s freight train, which was south bound, had arrived at Bethel under orders that required it to take said passing track. It consisted of a locomotive and 43 ears. The usual crossing signals were given, and, when the locomotive reached a point about a car length from said switch, it halted and a brakeman went forward to the switch, threw it, and the train moved onto the side track. There ivas a controversy as to the length of time the train occu
■ ' Plaintiff was driving his ear from Randolph to Bethel Village. He stopped about five minutes at the head of Church Street to leave a passenger and then proceeded to the crossing. The highway he had traversed for the most part of two miles and a half from Bethel towards Randolph was near and in plain sight of defendant’s track, and the head and part of Church Street were in sight thereof. His evidence tended to sho.v that neither he nor the other occupants of the car saw or heard any train on the track that night after leaving Randolph until they reached the crossing, and that they had good opportunity both to see and hear. The night was rainy and misty, and the automobile top and wind shield were up. About 50 feet east of the track was a covered bridge over the river, which was lighted by electric lights. The bridge was undergoing repairs, and there were also lanterns on the end of the bridge towards the railroad that were visible to the plaintiff as he descended the hill towards the crossing. Plaintiff was well acquainted with the locality and the condition of the road. As plaintiff started down the hill he threw out the clutch and applied the brakes, which worked properly, and slowed the speed of the car to ten miles an hour or less. He looked and listened and saw and heard nothing. Part way down the hill he relaxed his brake somewhat to increase his speed a little, but kept his foot on the brake. When a short distance from the track he discovered the train and put on the brakes, which held; but the car, with its wheels locked, slid forward into the train, owing to the steepness of the grade and the wet and slippery condition of the road. The damage to the car was occasioned by the train starting just as the car struck it. Plaintiff saw no light at the crossing or on the train, and first discovered the presence of the train when he reached a point where the cars obstructed the light from the bridge, a distance of 15 to 20 feet from the crossing. The road had been recently oiled and was greasy. Such was the tendency of the evidence, regarded in the light most favorable to the plaintiff.
The defendant relies only on its exception to the denial of its motion for a directed verdict. The several grounds of the motion assigned in the court below may be summarized as fol
Concerning the first ground of the motion it was conceded» that the plaintiff bought the automobile in question a month or six weeks before the accident; that it had been registered by the former owner, but that the plaintiff had not had it registered in his name as required by law. G. L. 4716 provides that an automobile or motor vehicle shall not be operated upon a public highway, or a private way laid out under authority of law, unless registered as provided in the preceding sections. By G. L. 4718 a person who violates a provision of the chapter of the statutes relating to the regulation of automobiles and motor vehicles, for which other penalty is not provided, is subjected to a fine of not more than one hundred dollars. It is provided elsewhere in -this chapter that, upon the sale of an automobile, its registration shall expire, and that the purchaser shall take out new registration (G. L. 4677); and that the fee for reregistering the automobile shall be one dollar, provided it is done within five days after the purchaser comes into possession of the automobile. G. L. 4674.
The defendant’s claim is that the plaintiff was unlawfully traveling on the highway, had no right to be there, as he was; violating the law of the State; and, therefore, it was under no» duty to take precaution for his safety while so using the highway approaching the crossing. The defendant relies upon an Alabama case and several Massachusetts eases, that fully sustain its contention. It is there held, under statutes similar to ours prohibiting the operation of unregistered automobiles on the highways, that the violation of this prohibitive statute makes a plaintiff a trespasser and not entitled to the privileges and protection which the law accords to a traveler on the highway. The unregistered automobile is regarded as “outside the pale of travelers” on the highway and as having no rights there except to be protected from reckless or wilful injury.
The statute regulating automobiles and motor vehicles was enacted in 1904 (No. 86, Acts of 1904), and appears to have been taken bodily from the Massachusetts statute of the preceding year. The provision of the latter statute similar to the one now under consideration first came under consideration in 1908 in Doherty v. Town of Ayer, 197 Mass. 241, 83 N. E. 677, 14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355. The construction given by the Massachusetts courts furnishes no guide to the legislative intention in this State, since their decisions were subsequent to the adoption of the statute here; but a brief review of the Massachusetts cases may prove helpful as showing where the rule adopted there leads to. It was said in Doherty v. Town of Ayer, supra, that since the plaintiff was upon the road only as one riding in and operating, an automobile, if it was unregistered and if he was unlicensed, he had no relation to the highway, and he was in no sense a traveler, except as a violator of the law in reference to the use that may be made of the way. It was further said, in regard to the right of recovery, that a violation of the statute in this particular so affected his relation to the town in regard to the way and the only use he was making of it, as to leave him without remedy for an injury caused by a defect therein. In Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561, while recognizing the general principle that for an unlawful act to preclude recovery it must have directly contributed to the injury, the court held that the Legislature intended to outlaw unregistered automobiles and to give them, as to persons lawfully using the highways, no other right than that of being exempt from wanton or wilful injury; that the plaintiff was a mere trespasser, not only as to the owner of the soil, but also against the rights of all other persons who
As the logical result of this conclusion, it was held in Feeley v. City of Melrose, 205 Mass. 329, 91 N. E. 306, 27 L. R. A. (N. S.) 1156, 127 Am. St. Rep. 445, that there could be no recovery for injuries to passengers in an unregistered automobile, though the passengers did not know that it was not registered, as they were not travelers upon the highway but trespassers. Following this decision the Legislature enacted that the fact that the automobile was not registered should not be a defence unless the plaintiff .knew or had reasonable cause to know that the statute was being violated. Rolli v. Converse, 227 Mass. 162, 116 N. E. 507. In Chase v. New York Cent. & H. R. R., 208 Mass. 137, 94 N. E. 377, the court calls attention to the distinction between unlawful conduct which is a cause of the injury and that which is a mere condition of it; but held that the operation of an unregistered automobile was unlawful in every aspect of it, that everything in the conduct of the operator that enters into the propulsion of the vehicle is under the ban of the law, that the machine is at all times an outlaw, and that the conduct of the operator of such an automobile is permeated by disobedience of law, and so directly contributes to the injury. The operator of an unregistered automobile is held liable as a defendant for all direct injury resulting from its operation upon the highway, though such injury was not the result of an act of negligence. Koonovsky v. Quillette, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918 B, 1146. In Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701, the court reaffirms its position as to an unregistered automobile, but holds that an unlicensed operator is not a trespasser and so precluded from recovery, unless the failure to have a license is shown to be a contributing cause of the injury sued -for. These decisions place the operator of an unregistered automobile só far outside the protection of the law in Massachusetts that he is permitted to recover only when the defendant’s conduct is in the nature of a wilful, intentional injury ; or, in other words, when it amounts to a criminal or quasi criminal aet. Dean v. Boston Elev. Ry. Co., 217 Mass. 495, 105 N. E. 616.
Construing the statute under consideration as we do, ■ the fact that plaintiff’s automobile was not registered as the law re
Holding, as we do, that the defendant’s duty to the plaintiff was that owed to-a traveler upon the highway, we pass to the inquiry whether there was evidence for the jury on the question of defendant’s negligence. Plaintiff’s claim at the trial was that the defendant was negligent in failing to station a man with a lantern at the crossing to give warning that it was obstructed by. the train. As to the controversy concerning the length of time that the crossing had been obstructed, it is enough to say that it is wholly immaterial whether the train had been standing there more than five minutes, or whether it had merely paused for a few seconds. Concededly it was moving, or on the point of moving, at the time the plaintiff ran into it. If the defendant had occupied the crossing more than five minutes in violation of the statute (G. L. 5177), it was not, in the circumstances, evidence of negligence, for it was only a condition and not the proximate cause of the accident. Assuming that the train had occupied the crossing for an unlawful length of time, plaintiff was not injured thereby. ’ Nor, in the circumstances, was the length of time material in any view of the matter.
In order to charge the defendant with negligence, it must be found from some substantial evidence that its servants, in the exercise of ordinary care, -should have known that, on account of the darkness, the cars upon the crossing were such an obstruction that a person traveling upon the highway approaching the crossr ing from the west, at a reasonable rate of speed, in an automobile
If the circumstances attending the accident were as plaintiff claimed, it is apparent that the automobile was not stopped before it struck the train because of the greasy condition of the road. But the defendant was not responsible for this condition, and there was no evidence that the trainmen knew or ought to have known of its existence. Thus, an unusual condition, unknown to the defendant’s servants, intervened that changed the plaintiff’s situation from one of safety to that of danger. There was nothing in the evidence to show that the trainmen did not manage the train with reasonable care and prudence in view of all the circumstances they knew or ought to have known. The accident happened through no fault of the defendant, and the court should have sustained its motion on the ground that there
It is unnecessary to consider the questions presented under the third ground of defendant’s motion, as the exception is otherwise sustained.
Judgment reversed, and judgment for the defendant to recover its costs.