96 Vt. 208 | Vt. | 1922
The plaintiff alleges negligence resulting in defendant’s train colliding with his team at a grade crossing from which he suffered personal injuries and damage to property. The trial was by jury with verdict and judgment for the plaintiff. The negligence claimed consisted of the alleged insufficiency of the crossing, in that it was not properly planked, and failure of the engineer in not seasonably stopping the train after he knew, or ought to have known, of plaintiff’s peril.
At thq close of the evidence the defendant moved for a directed verdict on several grounds. The exceptions saved to the overruling of the motion and to the charge present the principal questions for review. For the most part there was no controversy in the evidence. The crossing in question is about one mile north of Georgia station. The highway of which the crossing is a part is not much traveled, and crosses the railroad track diagonally in an easterly and westerly direction. The accident occurred at about six o ’clock in the evening of December 11,1920. It was quite dark and had been snowing and the wind blowing so that the snow was drifted over the roadway in the vicinity of the crossing. It so covered the track of teams in the vicinity that the plaintiff could not see the crossing. I-Ie was engaged in moving his daughter’s household furniture from Georgia to Fairfax and had a span of horses attached to' a pair of travers sleds, the load weighing about 2,800 pounds. At the time of the accident the plaintiff was going easterly over the crossing. The highway at that point crosses the track at an acute angle, the two being nearly parallel for some distance on either side of the crossing. As the crossing was planked, a- team approaching it from the west had to turn to the left as it drove onto the crossing, and to the right as it was leaving it, to keep on the planking. Even then the course of travel over the crossing was nearer the south end than the north end of the planking. In other words, if the driver of a team followed the general course of the highway without turning he would drive off the south end of the planking. This is what happened to the plaintiff as he attempted to make the crossing. He followed the general course of the highway
One ground of the motion was that there was no evidence tending to show negligence on-the part of the defendant respecting the construction of the crossing. But we think the evidence made that a jury question. It is said that “the crossing was planked with the travel and as the crossing was used. ’ ’ However, it was not planked as travel would naturally go, and it may well be that the planking was the cause, and not the result, of the usual course of travel over the crossing. It was for the jury to say whether, in the circumstances, the planks should not have been differently placed. It is urged as another ground of the motion that there was no evidence tending to show that any defect in the crossing caused the plaintiff’s team to be stalled thereon. Whether the defective planking of the crossing, if so found, was the proximate cause of the team’s being stalled, was, on the evidence, clearly a question for the jury. Considering the angle at which the runner that was off the planking struck the rail the position taken by the rear sled was perfectly natural and did not, as defendant argues, indicate that the sled was not properly constructed. Nor can it be said as matter of law that
Other specified grounds of the motion raise the question whether there was any evidence tending to show the claimed negligence in operating the train. It must be conceded that the defendant’s evidence strongly indicated that the engineer did everything possible to stop the train after he became aware of the plaintiff’s dilemma. The engineer testified that he saw the signal to stop given by the plaintiff and immediately shut off steam and applied the full emergency brake; and that the train was then about fifteen rods from the crossing. This testimony was corroborated by the other trainmen. But the evidence on this branch of the case was conflicting. The plaintiff’s evidence tended to show that the signal to stop was given when the train was at least 1,900 feet from the crossing and that the speed was not slackened as the train approached. The distance within which the train could have been stopped did not appear, but it was conceded that it could have been stopped in less than 1,900 feet. On the evidence, considered in the light most favorable to the plaintiff, the question could not be ruled as a matter of law, but was properly submitted to the jury. The signal to stop was seen and understood by the engineer. If given when the plaintiff’s evidence tended to show it was, there could be no- doubt that the jury would be justified in finding that the failure to stop the train and avoid a collision was due to negligence chargeable to the defendant.
At the trial the defendant claimed that, so far as injury to himself was concerned, the plaintiff assumed the risk when he undertook to unhitch the horses with the train “right on him,” and excepted to the failure of the court to charge on that phase of the case. The evidence was conflicting as to where the train was when the plaintiff got back to the team after giving
It is now generally recognized that there is a distinction between the doctrine of contributory negligence and the doctrine of assumption of risk. Note 18 Ann. Cas. 960. While this was left an open question in Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 16, 66 Atl. 801, the existence of such a distinction has come to be recognized by this Court. Carleton v. Fairbanks Co., 88 Vt. 537, 548, 93 Atl. 462; Pette’s Admr. v. Old English Slate Quarry, 90 Vt. 87, 93, 96 Atl. 576; Robey v. Boston & Maine R. R., 91 Vt. 386, 100 Atl. 925. The occasion for considering the distinction so seldom arises, except with respect to the relation of master and servant, that it seems to have been quite generally understood that the doctrine of assumption of risk is confined to cases arising out of that relation. Some courts hold that the doctrine has no application in actions for negligence where the parties do not occupy a contractual relation. Among the. cases so holding are Conrad v. Springfield Con. Ry. Co., 240 Ill. 12, 88 N. E. 180, 130 A. S. R. 251; City of Linton v. Maddox (Ind. App.), 130 N. E. 810; McGeever v. O’Bryne, 203 Ala. 266, 82 So. 508; Campbell v. Railway Tr. Co., 95 Minn. 375, 104 N. W. 547; Wilkins v. Water & Light Co., 92 Neb. 513, 138 N. W. 754. Other courts regard the distinction, at least in cases not affected by a contractual relation, as purely theoretical, holding that in its practical application to such cases the doctrine of assumption of risk necessarily involves that of contributory negligence. See United Rys. & Elec. Co. v. Riley, 109 Md. 377, 71 Atl. 970; 18 R. C. L. 675. Still other courts hold that, independently of any contractual relation, there may be a voluntary assumption of the risk of a known danger such as will bar one from recovery for injury to person or property, even though in the exercise of due care. Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N. E. 994; Indiana Nat. Gas Co. v. O’Brien, 160 Ind. 266, 65 N. E. 918. This Court is committed to the latter view. Drown v. New
It has been observed that few subjects of the law have a more obscure and complicated terminology than that pertaining to the doctrine of assumption of risk. 18 E. C. L. 671. It is believed that much of the confusion to be found in the cases dealing with the question presented here arises from a failure to distinguish carefully the two phases of the doctrine of assumed risk, or to keep in mind the different senses in which the term is used, as to which see Carleton v. Fairbanks Co., 88 Vt. 537, 549, 93 Atl. 462. In the primary and narrower sense the doctrine can apply only when a contractual relation exists, ordinarily that of master and servant. But in the broader sense it may apply when no relation by contract exists within the limits of the maxim “volenti non -fit injuria.” If one knowing and comprehending the danger voluntarily exposes himself to it, though not negligent in so doing, he is deemed to' have assumed the risk and is precluded from a recovery for an injury resulting theroefronr. The maxim is predicated upon the theory of knowledge and appreciation of the danger and voluntary assent thereto.
If the application of the maxim “volenti non fit injuria” is recognized as extending beyond contractual relations, the limitations of the doctrine of assumption of risk based thereon must be looked for in the terms of the maxim itself. Any other course would be illogical, and the limitation could not escape being purely artificial. Courts that have adopted the contractual limitation have experienced this difficulty. Tested by the maxim, what are the limitations of the doctrine as applied to the case in hand? It is said in Warren v. Boston & Maine R. R., 163 Mass. 488, 40 N. E. 895, that the doctrine of assumption of risk, as distinguished from the doctrine of reasonable care, in an action between persons not having relations by contract, must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way of it. To the same effect is Gentzkow v. Portland Ry. Co., 54 Or. 114, 135 A. S. R. 821; Illingsworth v. Boston Elec. Co., 161 Mass. 583, 37 N. E. 778, 25 L. R. A. 552. It is not enough that the plaintiff knew and appreciated the danger. Was it a voluntary act within the meaning of the maxim ? To be voluntary an act must be done of one’s own free will. The word emphasizes the idea of freedom
We think it cannot be said there was evidence to-support an inference that the plaintiff voluntarily assumed the risk. He testified in cross-examination that after giving the signal and when he saw the train wasn’t going to stop he ran back to the team to save the horses; that when he got to the team the train was “right onto” him; that he had unhitched the tugs of the nearest horse (the one that was not injured) and was attempting to unhitch the tugs of the other horse when the train struck the sled; that he was standing about five feet from the nearest rail, and that the horses were still farther from the track. There was also evidence tending to show that the plaintiff told his daughters, who were holding the horses, to get out of the way. That the evidence tended to show knowledge and appreciation of the danger is apparent. The infirmity of the defendant’s
The defendant argues an exception to the charge respecting the degree of care required of the plaintiff in the “emergency” in which he found himself. In taking the exception. counsel admitted that if the emergency was brought about by the negligence of the defendant, fault could not be found because the plaintiff “didn’t exercise special care” in the emergency; and in their brief they say that if the emergency was brought about by the defendant’s negligence the charge might be justified “on the well-settled ground that a defendant cannot be too exacting as to the conduct of a plaintiff in an emergency wrought by defendant’s negligence.” The claim relied upon in taking the exception was that'if the emergency was due to plaintiff’s own negligence, or at least was not due to any fault of the defendant, then the plaintiff was bound to exercise the care of a prudent man in the circumstances — not what he
It had appeared in evidence that plaintiff’s horses with some other property was covered by a mortgage on which a balance remained unpaid. In view of something said in argument about there being a mortgage upon the horses, the jury were told that they had nothing to do about this; that the plaintiff would be entitled to recover whatever damage was suffered by reason of injury to the horse, whether there was a mortgage or not; that the title to the horses was in the plaintiff and he had a right to mortgage them as security for a debt or not, “you have nothing whatever to do with that. ’ ’ The exception taken was to the charge of the court in respect of the mortgage and its force, and especially to that portion of the charge wherein it is said that the title to the property was in the plaintiff. Counsel assert in their brief that the court erred in its instruction as to the effect of the mortgage on the horses, but say no more in support of the claim than that the title to the horses was in the mortgagee, with the right of immediate possession; and that plaintiff’s right therein was only an equity of redemption. Their contention in that regard may be conceded and is supported by the cases cited. But the fact that the legal title to the injured horse was in the mortgagee does not affect the plaintiff’s right to maintain this action for its injury. It is generally held that a mortgagor, if in actual possession, has a right of action against one who wrongfully injures the mortgaged property, unless the mortgagee has intervened for his own protection. Jones on Chat. Mtg. § 447a; Woodruff v. Halsey, 25 Mass. (8 Pick.) 333, 19 A. D. 329; Wilkes v. Southern Ry. Co., 85 S. C. 346, 67 S. E. 292, 137 A. S. R. 890; Southern Ry. Co. v. Chambless, 10 Ala. App. 326, 65 So. 417; Ex parte Southern Ry. Co., 187 Ala. 672, 65 So. 1034; Chicago, etc., Ry. Co. v. Earl, 121 Ark. 514, 181 S. W. 925, Ann. Cas. 1917 D, 552; Swank v. Elert, 55 Or. 487, 105
Judgment affirmed.