94 Vt. 80 | Vt. | 1920
This action, based on alleged negligence, is brought by the administrator, under the statute, for the benefit of the widow and the next of kin. All the tracks and territory in the railroad yard at Brattleboro, south of Bridge Street, are the property of the defendant. The yard of the Boston and Maine Bailroad is north of Bridge Street, and not material to any issue in this case. All the switching in Brattleboro yard, both that of defendant and of the Boston & Maine, was done by defendant’s switch engine and its yard-crew. The two railroad companies kept at that place separate and independent combined car inspectors and repairmen. Those of the Boston & Maine were decedent, foreman, and John Curry, his helper. These two •men were employed and paid by that company, did only its work, and were exclusively under its orders. Whenever cars came into Brattleboro from the north or south over the road of the Boston & Maine, they were inspected by decedent, or under his direction by Curry, and if any repairs were needed, a note thereof was made. Later, decedent and Cúrry found the car in the yard, and made the necessary repairs.
The main track is west of the freight house, also of the old passenger station. There are several spur tracks east of the main track, extending north. The northerly portion of one of these spur tracks, and governed by a certain.switch, is known as the “general delivery track,.” and is used “for commercial purposes for unloading and reloading” freight cars,’though such use is not exclusive. On the west side of this track, and between it and the old passenger station and the freight house, is a passage way for people with teams or otherwise, having business at the freight house, or at cars standing on the “general delivery track,” in loading and unloading freight. This passage way is also used by people and teams going to or from warehouses and coal sheds located on the east side of this spur track.
It appeared that on Saturday, July 21, 1917, defendant’s switching crew moved all cars from the “general delivery track”
At the close of the evidence, defendant moved that a verdict be directed in -its favor on several grounds named, only one of which need be mentioned, namely, that on the evidence, viewed in the light most favorable to the plaintiff, the decedent assumed the risk of going beneath the cars in the circumstances, as he did, without taking any means of safeguarding himself against attending dangers. To the ovei’ruling of the motion defendant excepted.
Of the operating rules of the Boston & Maine Railroad, are the following: (26), “A blue signal, displayed at one or both ends of an engine, ear or train, indicates that workmen are under or about it; when thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. * * *” (983), “When inspecting or repairing cars which they (car inspectors and repairmen) do not wish moved, they must first display the proper signals as prescribed by Rule 26.” These rules, or simi
Buie 26 is a standard, adopted, in substance at least, by most of the railway companies in this country. The defendant company has a similar rule (of same number) which has been in force ever since June 18, 1911.
The signals thus required to be displayed by such inspectors and workmen, are intended for their safeguard from danger to which they would otherwise be exposed in the performance of their duties; and when displayed such signals constitute notice to switchmen that workmen are under or about the engine, car, or train so protected, and that such engine, car, or train (in the words of the Buie) “must not be coupled to or moved.” Decedent had been furnished with, and 'at the time in question had in his possession at the tool house, blue flags to be used as such signals.
At the time of the accident, the decedent had worked in that same yard for the Boston & Maine Bailroad, as foreman car inspector and ear repairer, continuously for thirty-four years. Under him, Curry had'worked as helper for eleven years. Decedent had that company’s Buie Book, studied it,' and was thoroughly conversant with the two rules shown and discussed above. In March, 1915, he and other repair foremen on the same division of that system of railroads, were called together by the Master Mechanic (in the line of his duties) and given instructions regarding their duties and protection under the two rules mentioned, and instructed that they must live up to them at all times; and in June, 1916, the decedent was sent a copy of a circular issued by the Superintendent of Motive Power, on the subject, “Protection for Bepairmen,” particularly calling “attention to the rules relative to furnishing protection to car repairmen in view of” a serious accident which had then recently occurred on another railroad. Buie 26 and the rule then in force similar to Buie 983, quoted above, were set forth in the circular. The copy of this circular sent to decedent, was found, after his death, among the files in the tool house, mentioned, where it was always kept by him after receiving it.
The undisputed evidence showed that switching was done in that yard every day, more generally in the morning from nine o ’clock until noon, but sometimes later; that it was of frequent occurrence that cars were switched back and forth on
The motion for a directed verdict should have been granted.
Judgment reversed, and {judgment for defendant to recover its costs.
On Motion eor, Reargúment.
After the foregoing opinion was promulgated, the plaintiff was permitted to file a motion for- reargument, the real ground of which is that the blue flag rule had been waived by the defendant so far as the “general delivery track” was concerned, and therefore it cannot be said that decedent assumed the risk of injury in going under the cars, as he did at the time in question, without putting up the blue signal.
What we have said upon this motion only amplifies what is necessarily involved in the holdings made in the opinion; and the motion is denied.
Judgment reversed, and judgment for defendant to recover his costs.