96 Vt. 191 | Vt. | 1922
The facts developed on the retrial of this case differ from those of the former trial as shown by Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 111 Atl. 346, in the following respects, only:
1. At the trial under review, there was no dispute as to where the engineer was at the time of the accident. He was in the gangway on the fireman’s side of the cab.
2. - At the retrial, it was agreed that torpedoes must be kept in the cab where they will be readily accessible to the fireman and head brakeman, upon whom would rest the duty of protecting the front end of the train if occasion required; that during all the time here material, torpedoes were kept in a box in the cab, the movable cover of which formed the fireman’s seat; and that the engineer was the superior officer of the fireman, and of the head brakeman while he was riding in the cab.
The trial below was by jury, and the verdict and judgment were for the defendant. The plaintiff brings the case here on exceptions, which relate to the charge of the court and to the argument of defendant’s counsel.
When the ease was here before, two jury questions were found in the record: (1) Did the defendant exercise the high degree of care required by the law to keep safely these dangerous instrumentalities? (2) Did the engineer move forward the engine while acting within the scope of his employment and when he knew or ought to have known that the torpedo would thereby be exploded and the plaintiff’s safety endangered?
The plaintiff places much reliance on Euting v. Chicago, etc., Ry. Co., 116 Wis. 13, 92 N. W. 358, 60 L. R. A. 158, 96 A. S. R. 936, a case cited in our former opinion. So far as then cited, that case was and is regarded as sound. But we did not then and we do not now indorse that part of the holding here relied upon. As pointed out in the former opinion, it is held in some jurisdictions that the master is an insurer when keeping and using inherently dangerous agencies in his business. It should be noted, in passing, that these cases, at least so far as they are accessible to the writer, confine the liability of the master to his own neglect or that of the servant to whom he intrusts the dan
On the authority of our own decisions, we hold that there was no evidence tending to show negligence chargeable to the defendant and that the motion for a verdict should have been granted. As stated above this renders harmless any trial errors here involved.
Judgment affirmed.