54 Vt. 200 | Vt. | 1881
The opinion of the court was delivered by
The Montpelier & Wells River Railroad being in the possession and management of receivers appointed in a suit pending in the Court of Chancery, these petitions were brought in that cause ; and the subject-matter of them became proper subjects of adjudication in that court and cause. Answers were filed, and that court referred both petitions to the same master, and the hearing was had on both petitions at the same time. The order of reference in the Merrill petition directed the special master “ to find and report to this court in accordance with the prayer of said petition.” The order in the Central Vermont petition was to the same effect, and also to return all the testimony to the court. One report was filed in both causes, also exceptions thereto by the receivers ; and upon hearing by the chancellor the exceptions were overruled, and the receivers ordered to pay the petitioners respectively the amount reported, from which decrees an appeal was taken to this court.
It is first claimed in behalf of the receivers that the special master’s report of the facts is not conclusive thereof; that notwithstanding the report, the testimony taken before him must also be reported, and the whole of it is subject to revision by the Court of Chancery, and by this court on the appeal.
It is further claimed that as the subject-matter of reference involved an assessment of damages, it could only be tried by jury or by the court; that only matter of accounting could properly be sent to a master. The case was referred before the law of 1878, providing for trial of facts by special masters in any case in chancery ; and we understand it was a voluntary reference, and that no appeal has ever been taken to the order of reference or objection made to it. It is too late now to raise any question upon this order, or in respect to the method of trial adopted.
But the first point is the one now mainly pressed. If the proposition here insisted upon is correct as a general proposition appli
Under the well-established practice here and elsewhere, this report is conclusive as to the facts in this case. ■ There is no charge of corruption. A careful reading of the testimony shows no fact was found without evidence or against evidence. Under the general rule, the weight of the evidence was for the master to determine. There is nothing about this case to make it especially exceptional. The report covers the ground of the defendants’ re
It is further claimed that upon the report the petitioners are not entitled to recover. By contract between the Central Vermont R. R. Co. and the Montpelier & Wells River R. R. Co. the former acquired the right to use two miles of the track of the latter for the running of its trains, paying therefor a stipulated price. The switch which guided the Central Vermont trains on to this track was to be under the control of the Montpelier & Wells River Company, and to be operated by the switchman of that company. This constituted the entire arrangement, so far as expressed between the parties. An out going Montpelier & Wells River train from Montpelier was due to pass the point of this switch a few minutes before an incoming Central Vermont train was due at that point. As the latter train approached this point, the switch-man informed the conductor that the outgoing train had passed. This was a mistake, and the consequence was a collision in which the petitioner Merrill, the engineer of the Central Vermont train, was injured and the train wrecked. The master finds that the acci_ dent and injury was due solely to the negligence of the defend, ants; and that said engineer and all his train men were without fault, but were in the exercise of due care and prudence.
The defendants insist that as the contract is silent as to who should take the risk in case of accident or be responsible for the negligence of the switchman, the petitioners can stand on no con tract obligation. And they insist further that none of the duties expressly created or imposed by their charter or the general laws of the State were violated, therefore the petitioners were not injured by the non-observance of any duty imposed by law. The precise question here raised having been considered and decided in this State adversely to the defendants’ claim in the case of Sawyer v. R. & B. R. R. Co., 27 Vt. 370, there is no occasion for re-examination of the subject unless that case is to be over, ruled; and the defendant’s argument in substance is that that case
The defendant’s counsel have discussed the question of interest, but the petitioners make no claim for interest prior to the decree of the chancellor.
The decree of the Court of Chancery is affirmed, and the cause remanded.