87 Vt. 87 | Vt. | 1913
This is an action to recover damages for personal injuries received by the plaintiff, a traveler on the public highway, when crossing defendant’s track at “Moore’s Crossing,” so-called, in the town of Hartford, this State.
The defendant’s railroad runs northerly and southerly. Going northerly toward the crossing where the accident happened, the public highway nearby parallels the railroad for a long distance before turning westerly over it at this crossing. This portion of the highway is some feet lower than the railroad track, and is on an ascending grade for a hundred fifty feet or more before getting to the crossing. From where the highway begins to turn westerly, it runs somewhat diagonally with the railroad track up to the crossing. Nearing the crossing from the same direction, there stood on the right hand side of the highway a crossing sign post, 8 by 8 inches in size, and 19.9 feet from the easterly rail of the railroad track at the crossing. Standing 11 feet northerly of this post and 19.3 feet from the easterly rail, was a telegraph pole. Southerly of the crossing sign post and 33.2 feet from the easterly rail; stood a telephone pole. These telegraph and telephone poles were about ten inches in diameter. There Avas also a fence extending from the cattle guard just northerly of the crossing back (easterly) to the fence along the line of the railroad right of way. The Avesterly end of this fence was 6.6 feet from the easterly rail. The fence Avas made of posts and boards nailed thereon. The boards Avere narrow, and the spaces between them were as wide as the boards, if not wider. The fence was four boards high, except that between the second and the third posts from the track, it was but three boards high. Some 300 feet northerly from the crossing is a knoll on the same side of the track, 8.5 feet high above the center of the track at the crossing. From the center of the crossing in the same direction the track is straight for a distance of 2,363 feet, then it curves westerly.
The plaintiff when injured \vas sixty years old, health good, hearing good, eyesight good. He had before then passed over the crossing where the accident occurred several hundred times, and was entirely familiar with the crossing and its surroundings,
The case stands upon the plaintiff’s testimony alone as to Arhat he did when approaching and going upon the crossing. In this respect his testimony was in substance that when back from the crossing some 800 feet or more, being cold, he got off the seat to walk, thereafter walking beside the tongue, between the front wheels and the body, so he could drive his horses; that it was then about half past two o’clock; that thus walking he was six or seven feet behind .the horses’ tails and fourteen or fifteen feet back of their heads; that he knew it was about time for the express train to come along there, and so listened, thinking that if he heard the whistle blow he would stop and wait until the train went by; that not hearing the whistle, he drove along to a point forty or fifty feet from the easterly rail and then stopped, looked up the track, and listened for the whistle; that neither seeing nor hearing anything there, he started along, still watching and listening; that after he got by the posts and the fence, and when the horses were on the crossing and he “was just getting on” to the track, he “gave another look” and saw the train coming, “and I slapped up my horses with the reins and holler to go and I was hurrying as quick as I could — I didn’t want to get killed and my horses did jump ahead, but they struck my cart ánd the cart struck me;” that after starting along from where he stopped, as before stated, he did not stop again before going on to the track; that when looking from the place where he stopped the knoll bothered him a little, and after that the post was in the way some, and then where he stopped he was lower than the railroad and as he stood there looking up the track the fence was higher than he was and shut
The plaintiff further testified in considerable detail respecting the objects that obstructed his view from the highway northerly as he was approaching the crossing, including the knoll mentioned; but he introduced no evidence touching locations and distances by actual measurements. Giving him, as we must, the benefit of all that his testimony fairly and reasonably tends to show in this respect, and yet a jury would not be warranted in finding for him on the question of contributory negligence, in view of the unshaken evidence introduced by the defendant, bearing thereon.
The defendant showed that at a point 23 feet from the easterly rail, measured along the center of the highway over which the plaintiff passed in approaching the crossing, which point is but 12.6 feet from the nearest rail, measured direct, a person can see 2,363 feet northerly up the track to where it curves westerly as stated above. The train was running at the rate of fifty miles an hour, or 73.3 feet a second. Before the time when the plaintiff says he first saw the train, his horses were walking at the rate of two and one-half miles an hour, or 3.66 feet a second. It mathematically follows that when the plaintiff was at the point 23 feet from the easterly rail, the train was 459.5 feet away; and when the plaintiff was 15 feet from
Clear it is that within the distance of 23 feet from the easterly rail, measured along the center of the highway as traveled by the plaintiff, and while his horses were yet a safe distance from the track, the train was plainly within his view, and if he did not see it the only reasonable explanation is, that he was not vigilantly looking and listening, as the law required. ' Failing to do this, going upon the crossing was such contributory negligence on his part as prevents a recovery, unless it became remote within the meaning of the doctrine of the “last clear chance,” invoked by his counsel. Flint’s Admr. v. Central Vermont Ry. Co., 82 Vt. 269, 73 Atl. 500. Furthermore, the view of the track northerly being thus unobstructed within the distance named, the plaintiff’s testimony that he was continually looking and listening, but neither saw nor heard the train until it was only three or four rods away and just as he was going on to the track, avails him nothing. If he looked up the track, he must have seen the approaching train and he went upon the crossing regardless of it. If he did not look, the legal effect is the same. Let it be either way, his attempt to cross was a reckless undertaking. In Carter v. Central Vermont R. R. Co., 72 Vt. 190, 47 Atl. 797, the plaintiff gave in effect similar testimony, but this Court said that his subsequently detailed account of the occurrence showed that he was not watching vigilantly for the train before his attention was attracted thereto by the action of his horse, and the Court quotes with approval from a Pennsylvania case that, “It is in vain for a man to say that he looked and listened who walks in front of a moving locomotive.” In Blumenthal v. Boston & Maine R. R., 97 Me. 255, 54 Atl. 747, although the evidence showed the plaintiff’s view of the railroad was obstructed to a considerable extent for some distance before reaching a point 25 feet from the crossing, yet when he was 25 feet distant from the place of collision, he had an unobstructed view of the approaching train, which was not more than 150 feet distant on the track from the crossing. The court below rendered judgment of nonsuit, and on exception that question was considered in the court of last resort. It was there urged that an issue of fact was raised which should have been passed upon by the jury, because the plaintiff testified that before attempting to cross the railroad track he both looked and
Should the case have been submitted to the jury upon the doctrine of the “last clear chance”? The negligence of the plaintiff proximately contributing to the accident continued as long as it was possible for him to avoid personal injury. He was walking between the front wheels and the body of the dump cart, his horses perfectly manageable. The space between the forward wheels and the body was sufficient for cramping purposes', and there was no evidence tending to show that it was not large enough for the plaintiff to go through and outside the wheels, thereby to leave the team at any time before he went upon the track, if need be for his safety. He could have done this until the train was so near, according to the undisputed evidence, that it was no longer possible for those in charge to prevent a collision. Thus it appears that the plaintiff’s negligence, proximate in character; was concurrent with that of the defendant (assuming that the defendant was negligent) as long as it was possible for the latter to avoid the accident. In this respect the case is not distinguishable from that of Flint’s Admr. v. Central Vermont Ry. Co., cited above, and the doctrine of the “last clear chance” does not apply. French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 Atl. 722; Butler v. Rockland etc. St. R. Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267; Green v. Los Angeles Terminal R. Co., 143 Cal. 41, 76 Pac. 719, 101 Am. St. Rep. 68.
Judgment affirmed.