91 Vt. 485 | Vt. | 1917
In this action the plaintiff sues by her next friend, to recover for injuries received by her on September 10, 1915, at the defendant’s grade crossing known as “Parks Siding” in the town of Townshend, this State, by reason of the defendant’s locomotive colliding with the automobile in which she was riding. The automobile came upon the crossing from the east, going towards the west. The plaintiff was then two years and seven months of. age, and lived with her parents in the town of Newfane, about two miles from the home of her grandparents, Herbert G. Howe and his wife, Nora L. Howe, who lived in the town of Brookline. On the morning in question, pursuant to an arrangement previously made between the grandfather and the plaintiff’s parents, the plaintiff went with her parents to the house of her grandfather, to go to the Londonderry fair in the latter’s automobile. The party, consisting of the grandfather, the grandmother, their son Glen Howe, the plaintiff, her father and her mother, started in the automobile at seven o’clock and twenty minutes, for Londonderry. The grandfather was the driver of the ear, and with him sat Glen. The grandmother was seated on the extreme right of the rear seat, holding the plaintiff in her lap. The plaintiff’s mother and her father sat at the left of the grandmother, in the order named. Seven miles from the place of starting, was the crossing in question, with which the plaintiff’s grandfather and her father were well acquainted, and had often been over it in both directions, in an automobile. They both knew the time the morning train for Londonderry was due at the crossing, and understood it was due to leave West Townshend, about two miles north of the crossing, at 7 -.45 a. m. The accident occurred a little before eight o'clock. The driver threw the car into low gear about opposite the cross
The declaration states two grounds of negligence upon which the action is founded: (1) That the defendant did not give the required warning signal when its train was approaching the crossing in question, either by ringing the bell or sounding the whistle; and (2) That defendant allowed trees, shrubs, and bushes to grow and remain within the boundaries of its right of way within a distance of eighty rods in each direction from said crossing, the plaintiff’s view, as the automobile neared the crossing, being thereby obstructed.
At the close of the evidence, the defendant moved for a directed verdict on several grounds which may be condensed and adequately stated for the purpose of the case, as follows: (1) There is no evidence in the case tending to show any negligence on the part of the defendant that was the proximate cause of the injury; (2) On all the evidence, the proximate cause of the injury complained of was the negligence of the driver of the automobile, or of the father of the plaintiff, or of the mother of the plaintiff, or of some or all of them; (3) On all the evidence, the driver of the automobile, and the father of the plaintiff, were jointly or severally guilty of contributory negligence, which contributory negligence is imputable to the plaintiff; (4) On all the evidence, the occupants of the automobile were engaged in a common enterprise, and therefore the contributory negligence of the driver is imputable to the plaintiff; and (5) There is no evidence tending to show any actionable negligence on the part of the defendant because of the growth of shrubbery or trees- upon its right of way. To the overruling of the motion, defendant excepted.
The action, as to the second ground of negligence stated above, was treated by the court and by counsel on both sides throughout the trial below, as based upon Section 4478 of the Public Statutes, which reads: “A person or corporation operat
There was the negative testimony of several of plaintiff’s witnesses to the effect that they did not hear any bell ring nor whistle blow before the accident; while the testimony of other witnesses was that they heard the whistle blow back some distance from the crossing in question, which, fairly construed, may be said to warrant a finding that the whistle was blown in the vicinity of eighty rods back from the crossing. There was no evidence that the bell was rung at that place or between there and the crossing. For the purposes of the case on the motion for a verdict, we consider the evidence as showing that the bell was not rung at all when the train was approaching the crossing, and that the whistle was blown eighty rods from the crossing, but not afterwards and before the accident.
It is said on the part of the defendant that thus blowing the whistle was a compliance with the provisions of Section 4431 of
The statute reads: “A bell. .. shall be placed on each locomotive engine, and be rung at the distance of at least eighty rods from the place where the railroad crosses a road or street at grade, and be kept ringing until it has crossed such road or street; or the steam whistle may be' blown instead of ringing such bell.”
The next section (4432) provides that if a person or corporation owning or operating a railroad unreasonably neglects or refuses to comply with the foregoing provisins, it shall be fined, etc. The law of these sections was first enacted in 1849, and has hitherto remained in force without any change in words or substance material to be noticed here. Its construction came before this Court as early as 1864, in an action on the case for damages to horses and harnesses, on a public highway, railroad crossing. It was there held in effect that the two sections should be construed together; that by the first section, it is required that the bell shall be rung, or the steam whistle blown, at least eighty rods from the place of the crossing on the same grade, and that “the ringing or blowing shall be continued until the engine shall have passed such crossing”; that though in that section the requirement is affirmative and unconditional, yet by the law of the second section, if any railroad corporation shall unreasonably neglect or refuse to comply with such requisitions, they shall forfeit, for every such neglect or refusal, a sum not exceeding, etc.; that the fact that the corporation cannot be subjected to the penalty unless such neglect or refusal be shown to have been unreasonable, clearly implies that in the contemplation of the law there may be cases in which such neglect or refusal would be reasonable; and if reasonable, the penalty would not be incurred; that the provision of the first section was designed to operate more stringently than the common law; “and while it was not designed to subject the corporation to civil liability, entirely regardless of the circumstances and occasion of the omission to ring the bell or blow the whistle, in all cases of injury caused by such omission, still it was designed to require, as the general
The question of contributory negligence is yet to be considered. on the motion for a verdict, if it is in the case. The plaintiff was of- such tender years, at the time of her injury, as to be incapable of exercising care. But we assume, as counsel for defendant argue, that her grandfather (driver of the automobile), and her father were guilty of negligence contributing to the accident. The question then is: Is their negligence imputable to the plaintiff? In Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, the plaintiff, a child three years and nine months old, was severely injured when sliding on a sled in a public highway, by being caught by one of the runners of defendant’s loaded sleigh, drawn by two horses. The plaintiff at the time was attending school. The question of contributory negligence by the plaintiff was raised in defence; also the question of such negligence by the plaintiff’s parents in allowing him to attend school at the age and in the manner they did. The court said it was “satisfied that although a child, or idiot, or lunatic, may, to some extent, have escaped into the highway through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress.” In Ploof v. Burlington Traction Co., 70 Vt. 509, 41 Atl. 1017, 43 L. R. A. 109, the court said the case of Robinson v. Cone had become a leading case against the doctrine of imputed negligence, and its doctrine was quite generally followed by courts of last resort, and indorsed by eminent writers; and that this Court was content to abide by the decision of that case on the doctrine of imputed negligence. The foregoing is the established doctrine in this State, and is known in some other jurisdictions as the “Yermont rule,” (distinguishing it from the contrary doctrine, known as the “New York rule,”) and it is supported by the great weight of authority.
Nor did the fact that the persons with whom the plaintiff was riding in the automobile were engaged in a common enterprise, make any difference in this respect. The theory of the law which makes each of persons engaged in a common purpose at the time of an injury suffered by him, by reason of the neglect of some outside person, responsible for the negligence of any of his associates, contributing to the injury, is, that each was the agent of the others, and therefore that each was responsible for
The question of contributory negligence, therefore, is not in the case, and the only question is, whether the defendant exercised the degree of care required by law. The motion for a directed verdict was properly overruled. This holding shows defendant’s exceptions to the failure of the court to charge as requested touching the question of contributory negligence, to be without merit.
Since substantial exceptions of both parties are sustained, neither party should be allowed to recover costs in this Court.
Judgment reversed and cause remanded, without costs to either party in this Court.