89 Vt. 278 | Vt. | 1915
Lead Opinion
Arthur Ingram, a fireman on a Boston & Maine switcher, was billed by a Rutland Railroad switcher in
1. Did the defendant owe Ingram the duty of active care?
2. Was the defendant negligent?
3. Did the plaintiff sustain the burden of showing that Ingram was in the exercise of due care ?
All these questions, the defendant insists must, on the record now before us, be answered in the negative.
1. When the case was here before we held that Ingram was not a trespasser when killed. The defendant seeks to avoid this holding as to Ingram’s standing by the fact now shown by the record that the rights of the Boston & Maine in the yard of the Rut-land at Bellows Falls, were not general, as stated in the declaration, but limited, as shown by the proof. It now appears that the joint use of the Bellows Falls yard only extended to certain tracks and purposes, and it is urged that this shows that Ingram was, when killed, wholly outside his rights in the yard as a Boston & Maine employee, and was either a trespasser, or, at most, a mere licensee, to whom the Rutland owed no duty of active care.
We are unable to accept this view. The trouble with it is just this: It appears by this record that all that part of the yard in any way involved in this case was subject to the joint use of these companies, so far as the purposes for which the Boston & Maine switcher and crew were then in the yard were concerned. The Boston & Maine engine crossed over into this yard for a legitimate purpose, was all the time where it had a right to be, and as long as its crew were engaged in their duties there they were entitled to the protection which the law, under the arrangement, afforded them. The contrary is not claimed. So Ingram’s standing at the time of the accident is to be determined by what he did after the Boston & Maine switcher came’ to a stop to allow the Rutland switcher to get out of the way.
We are not disposed to depart from the doctrine of this holding. We are not unmindful of the general rule that puts a servant outside a recovery from his master, where he has, when injured, left his working place and gone elsewhere on some errand of his own. In such a case the relation of master and servant is temporarily suspended and is not restored until the servant’s return. So, if Ingram’s conduct amounts to such a departure from the business of his employer, there can be no recovery here; during his absence from his post the defendant would not owe him the duty of active care, and no actionable negligence would be shown by this record. It is not always necessary, however, to entitle a servant to recover against his master, that he should be at the moment of injury, actually at work in his proper place and in the business of the master. The law allows him some measure of latitude; and' while there is a sharp conflict in the cases as to the limits of this latitude, and some apply the general rule above referred to with great strictness, there is much to commend in the inclination manifested by some courts toward' a liberal regard for the just interests of the servant in such cases. Southern Ry. Co. v. Bentley, (Ala.) 56 So. 249. So the circumstances may be such that the master’s duty will cover the servant’s trip across the premises to and from his working place. Janilus v. International Paper Co., (Me.) 92 Atl. 653; Whatley v. Zenida Coal Co., 122 Ala. 129, 26 So. 124; Virginia Bridge Co. v. Jordan, 143 Ala. 610, 42 So. 73, 5 Ann. Cas. 709; and the circumstances may be such that a servant may step aside to get a drink of water, Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 So. 96;
2. The yard was unlighted except as the lights at the milk station, the switch lights and the lanterns of the men lighted it. The evidence ivas such that the jury was warranted in finding that none of these lights were of any aid to Ingram as he was hurrying back to his engine. Indeed, it might well be thought that they were worse than no lights at all, so far as he was concerned. The Rutland engine was pushing an unlighted milk car up one of the tracks Ingram had to cross to get to his engine. The Rutland engine had a headlight on each end of it, but this fact would be of smali service to one in Ingram’s position when called upon to judge the approach of the car; the engine was moving rapidly, — ten miles an hour — preparatory to kicking the car on out of the way; there was no man on the milk car to give warning; there was no light on it to show its exact location; the engine was working steam and making much noise. The conditions and operations were those usual in that yard, and it is altogether probable that they were familiar to Ingram. The rules of the two railroads required nothing more in the way of precautions. But it cannot, be said that no inference of negligence can reasonably be drawn from these facts. We cannot accept the view that the rules, or the practice of that yard, or both together, made the question of the defendant’s negligence one for the court. If this method of handling cars was negligent, it was unjustifiable. Boos v. Minneapolis, St. P. & S. S. M. Ry. Co., (Minn.) 149 N. W. 660; Hamilton v. Chicago, etc. R. Co., 145 Ia. 431, 124 N. W. 363. Nor did the other circumstances shown make that result. We are aware that there are cases like Hoffman v. C. & N. W. R. Co., (Neb.) 137 N. W. 878, and Crowe v. N. Y. C. & H. R. R. Co., 70 Hun. 37, 23 N. Y. Supp. 1100, that hold, as we are asked to hold here, that the facts shown do not make a ease of actionable negligence. We regard these cases as unsound and decline to follow them. Of the former it is to be said that the holding is by a bare majority, and of the latter Mr. Thompson says with some spirit, that ‘ ‘ It would be difficult to state a proposition more careless of justice and absolutely brutal, than the proposition that a railroad company can shunt its cars along its tracks at night with no light upon them to apprise its yardmen of their approach, and with no
3. Did the evidence warrant a finding that Ingram was in the exercise of due care? A¥e agree with the defendant that we approach this question unaided by any presumption in his favor. Shumm v. Rutland R. Co., 81 Vt. 186, 69 Atl. 945, 19 L. R. A. (N. S.) 973. On the other hand, in the circumstances shown, the fact that the ear ran him down does not necessarily imply that he was not in the exercise of due care. McGowan v. Wilmington, etc. Co., (Del.) 92 Atl. 1015; Indiana Union Trac. Co. v. Cauldwell (Ind.) 107 N. E. 705. While the burden was on the plaintiff, she was not required to establish Ingram’s watchfulness by direct evidence. It will be sufficient if it can be said that an inference of due care can reasonably be drawn from the facts shown by the record. That he did not stop, and that it does not affirmatively apirear that he looked and listened may not be controlling. The defendant says that the evidence shows that Ingram ran blindly toward his engine when the whistle called him, paying no attention to the well-known perils of the place and having no regard for his own safety. That this conclusion may fairly be drawn from the record cannot be denied. That it is the natural conclusion may be admitted. But this is not enough to prevent a recovery. In order to justify taking the case from the jury on this point, the evidence must be such as to exclude a reasonable hypothesis of due care on Ingram’s part. This the record before us does not do. In the Shumm case and in Wallace v. Fox, 81 Vt. 136, 69 Atl. 665, the parties injured could have seen the approaching cars in time to have avoided the danger, if they had looked. This cannot be said of Ingram. The facts were not sufficiently decisive on that point. He went from the light into darkness, and was probably somewhat blinded by this fact; the lights and noise of the engine may have confused him; he was justified in moving rapidly. While as we have seen, the instinct of self-preservation affords no presumption of due care, it may give character and force to facts established by the proof. Chase v. Maine Central R. Co., 77 Me. 62, 52 Am. Rep. 744. We think the jury was warranted in inferring from the evidence that Ingram, when he heard 'the signal calling him back to his engine, knowing all
Judgment affirmed,.
Rehearing
On Motion for Re-argument.
The defendant files a motion for re-argument based wholly upon the assumption that the foregoing opinion, in effect, overrules Shumm v. Rutland R. R. Co., 81 Vt. 186, 69 Atl. 945, 19 L. R. A. (N. S.) 973. This assumption is unwarranted. The doctrine of the Shumm case is unimpaired by the result reached in this case. In negligence cases, the circumstances are always important factors. The requirements of the prudent-man-rule vary in the changed conditions which surround the person whose conduct is to be judged. Sometimes very slight circumstances change the question presented from one of law to one of fact. One does not have to go very far into the cases to discover this. The circumstances of the Shumm ease are not the circumstances of this case. That a very deaf traveler on the highway, subject to the look-and-listen rule, who approached a well-known railroad crossing at a time of day when everything was plainly visible, and continued on to the very point of collision, almost, — so near, in fact, that one witness turned away to avoid seeing the accident, — with cap pulled down and going straight ahead, and was killed by a rapidly running engine, is held to have been guilty of contributory negligence,
That the case in hand is a close one was fully understood when the opinion was prepared. It was carefully considered and thoroughly discussed. As the result announced does not affect the doctrine of the Shumm case, a re-argument urging that it does would serve no useful purpose.
Rehearing denied.
