123 A. 211 | Vt. | 1924
Late in the afternoon of Saturday, June 17, 1922, an automobile owned and driven by George Bardis, of Northfield, was in collision with the defendant's train at the grade crossing at Riverton station, and the plaintiff's intestate, who was riding in the automobile as Bardis' guest, received injuries that resulted in her death. This action for damages followed. Riverton is the first station south of Montpelier Junction, and is about six miles therefrom; there is a heavy grade going south on the defendant's road between these points. The train involved in the collision was the regular south-bound milk train, running on schedule, and consisted of sixteen loaded milk cars and a coach, drawn by an ordinary freight engine, No. 414. This train, which was not scheduled to stop at Riverton, left Montpelier Junction at 4:42 P.M., under an order to meet a north-bound passenger train at Roxbury, where it should arrive at 5:40 P.M. At the time of the collision it was running very fast. The main line at Riverton runs substantially north and south, and the highway crosses it at a grade at substantially a right angle. The station building is located east of the track and south of the highway. From the north end of the platform of *347 this station a raised cinder structure extends northerly along the track and ends in a ramp about nine feet long, which runs down to and blends into the traveled track of the highway. A similar cinder structure extends southerly from the station platform. The one at the north end of the platform is made by placing two rows of timbers end to end along parallel to the track at a proper distance from each other, and filling with cinders the space between to the level of the platform. It is about eight feet wide. On the track side it is one foot above the ties and on the east side is two and one-half feet above the ground. Including the ramp it extends into the highway about twenty-five feet. Its obvious purpose is not only to furnish an approach to the station, but also to afford an extension of the station platform for the convenience of persons entering or leaving the defendant's cars and other railroad purposes.
East of its main line, the defendant maintains a spur siding, which branches off at a point about thirty rods north of the station and runs southerly, at varying distances from the main line, to and a little beyond the station, crossing the highway at a point about thirty feet from the main line, and passing east of the station.
The highway is four rods wide. By means of a covered bridge it crosses Dog River about thirty rods east of the main line. As a north-bound traveler comes out of this bridge, he finds at his right on the river-bank, a power house, just west of which is Davis Bros.' long granite shed extending westerly to a point some thirty feet from the siding. At the west end of this shed and on a north and south line therewith an office building extends southerly into the highway. These buildings entirely cut off this traveler's view of the main line to the north until he reaches a point opposite the southwest corner of this office building, about sixty-five feet from the main track. Nor does he then get an unobstructed view of the track to the north, which is practically straight for a long distance. At the west end of the Davis shed there is a trestle, made of heavy timbers, extending westerly to and over the siding and nearly to the main line. This trestle carries the crane that serves the shed. Then, north of the Davis shed and about fifty feet from it, stands the granite shed of Provost Son, which extends further west than the Davis shed into the defendant's right of way and ends at the siding. *348 This shed also has a trestle to carry its crane, the same being built from its west end out over the siding like the one above referred to. These trestles, with their heavy uprights and braces, materially obscure the view of the main line track from the highway to the north. A large telephone pole west of the siding nearly opposite the Provost shed adds more or less to this obscurity. The plan and photographs show that it would be difficult to so arrange the structures above referred to as to make it more difficult for a north-bound traveler to discover a train approaching from the north. Not only this, but at the time of this fatality, a box car was standing on the siding at the Provost shed, a flat car loaded with granite stood on the siding at the Davis shed; and south of that car, but north of the highway, stood a gondola coal car forty feet long and eight or nine feet high.
It is thus seen, without the aid of testimony, that a situation very hazardous at best was made much more so by the presence and arrangement of these cars. It would be a fair inference from the evidence that the view to the north was so completely cut off that one traveling north on the highway could not see a train coming south until he had cleared the coal car by several feet, and at a time when the train had nearly or quite reached the Provost shed. As already stated the train in question was running very fast. In the quaint phrase of the craft, the engineer testified that he was "just patting her on the back," meaning that he was trying to get the most possible out of his machine. The statutory signal by bell or whistle was not given.
The automobile in question contained seven persons: On the front seat sat Bardis, Miss Wilfore, and Mrs. Blodgett. On the rear seat were Mrs. Bardis, Mrs. LeFebvre (the decedent), holding her little boy in her lap, and her daughter, Glenna. These persons are here named in order from left to right as they sat in the car. Bardis drove through the bridge and along toward the crossing in low gear at a speed of about nine miles an hour. Just after he passed over the siding, he discovered the approaching train. He turned his car sharply to the left to avoid a collision. He ran the car up the ramp of the cinder platform, but the right rear wheel dropped off the timber and the collision followed almost instantly. *349
It is not to be taken, of course, that the foregoing facts were undisputed. There was a conflict of evidence as to many if not all of the most vital ones; but giving the plaintiff the benefit of a favorable construction, the facts above recorded are within the tendency of the evidence.
At the close of the evidence, the defendant moved for a directed verdict. This motion was overruled, and the defendant excepted.
We need take but little time with the claim that the evidence does not tend to show that the defendant was negligent. We are not concerned with the preponderance of the evidence; it is enough for our present purpose that the record discloses evidence fairly and reasonably tending to show that this train approached this busy crossing, made extremely hazardous by the defendant's fault, without the statutory signal or other warning, at a speed altogether too great to be consistent with the defendant's duty toward the traveling public. Indeed, the lack of the statutory signal, alone, made a prime facie case of negligence. Wakefield
v. Connecticut Pass. Rivers R.R. Co.,
In disposing of this question, we assume that the whistle was blown at the whistling post as the defendant's evidence tends to show — of which we shall speak again. We also disregard all question with reference to the watchfulness of the engineer and fireman. It is quite apparent that, with the speed of the train what the plaintiff's evidence tended to show it was, the enginemen, however watchful they might have been, could have done nothing to avert the collision after the automobile came into their range of vision. This is made so plain by the record that this question should not have been submitted to the jury.
We have nothing now to do with the question of Bardis' negligence; for, if shown, it could not be imputed to his guest, the decedent. Wentworth v. Waterbury,
The decedent was not required to advise or direct the operation of the car, for that might have been the worst thing she could do. Clarke v. Connecticut Co.,
It is frequently said in unqualified terms that a traveler approaching a railroad grade crossing must look and listen for trains, or be chargeable with negligence if he is injured by one. But this so-called rule is not an independent rule of law at all; it is merely an application of the prudent-man rule. This is shown by Manley v. Delaware Hudson Canal Co.,
The question involved in such cases is a practical one; the law does not require an impossibility or a useless precaution. If the decedent, by such use of her eyes and ears as her situation admitted of, and such as a prudent person would have made, would not have discovered the peril in time to have warned the driver so he could have avoided the collision, or if her situation was such as to excuse a prudent person from the duty of active care, she was not guilty of negligence that would bar the action.Thrasher v. St. Louis, etc., R.R. Co., supra. This is saying no more than was said by this Court in Carter v. Central *352 Vt. Ry. Co.,
It was said in Weidlich v. New York, etc., R.R. Co.,
It is to be observed that the case in hand differs from Boyden
v. Fitchburg R.R. Co.,
The court, in effect, instructed the jury that the cinder platform was a nuisance per se. To this the defendant excepted.
The defendant insists that there was no evidence tending to show the cinder platform was erected or maintained by it. But we cannot agree. It was so constructed and so related physically to the station building as to indicate with more or less force that it was built as a mere extension of the station platform and was a part of it. If it had been planked over as country station platforms usually are, no one could doubt that it was a railroad structure. That inference could reasonably be drawn from what is shown here. Familiar examples warranting such an inference readily come to mind. The piazza of a house projecting into the sidewalk, the steps of a store encroaching upon the street, the cornice of a building overhanging the highway, afford evidence that they go with the property and belong to its owner. The trestles extending from these stone sheds into the defendant's right of way, furnish some evidence, at least, that they belong to and are a part of the property to which they are attached. So *354 without regard to the defendant's attitude during the trial, we hold that there was circumstantial evidence that the defendant erected and maintained the cinder platform — both the part in the highway and the part on its own land.
Courts and textwriters are constantly saying that any obstruction in a highway is a nuisance. Taken literally, this statement is too broad. Not every object, structure, or encroachment in the highway is necessarily a nuisance. As we saw in Prouty v. Pellett,
This is not saying, of course, that cases do not exist in which the question can be decided as a question of law. That certain things in the highway are nuisances per se is expressly shown byState v. Smith, supra; and in State v. Woodward,
Thus far we have said nothing about the statute on which the court below put the case in submitting it to the jury. G.L. 4639 provides that a person who wilfully places an obstruction or other nuisance so as to impede the passing in the highway shall incur a certain penalty. G.L. 4641 provides that one so offending shall be liable for damages resulting from such unlawful act. These sections were formerly R.L. 3131 and 3133, and are mere statements of the common law. Mann v. Central Vermont Ry. Co.,
Our attention is called to what was said by this Court in State
v. Vermont Central R.R. Co.,
The defendant excepted to the submission to the jury of the questions whether or not the whistle was blown or the bell rung as required by the statute; and it now insists that there was no sufficient evidence that these warnings were not given to entitle the plaintiff, on whom rested the burden of proof, to go to the jury on the questions.
Two recent cases deserve attention in the consideration of this question: Rizzitelli v. Vestine (Mass.),
So far as sounding the whistle is concerned, it must be admitted that the case before us is like the case last referred to: No one, not even Bardis, testified that he listened for a whistle until the time for that signal had passed. In saying this, we assume that this train was to follow the usual and well-known custom of sounding the whistle at the 80-rod point and ringing the bell from there to the crossing. We understand, of course, that the statute gives the railroad company the choice *357
whether it will use the whistle or the bell to give the crossing warnings. It need not, so far as the statute is concerned, use both. But whistle or bell must be sounded from the 80-rod point until the crossing is passed. State v. Woodward,
But we do not need to pass upon this question, for if there was error here, it was harmless, for there was enough evidence that the bell was not rung as required by the statute to send that question to the jury. As we have seen, if the bell is used it must be kept ringing from the whistling post to and over the crossing. Bardis testified that he listened for the bell as he passed the coal car and that it was not rung; it ought then to have been ringing, and if it had been, he might have averted the accident, though it was then a matter of fractions of a second of time and inches of space.
On this point, the distinction between this case and those above referred to is clear and sufficient. Here was positive testimony that the statutory signal was not given, and there was no harmful error in the submission of the question. It is urged that the defendant should not be allowed the benefit of any point in the charge that could have been, but was not covered by the motion for a verdict. To this we cannot agree. Under an exception to the overruling of such a motion, only such grounds as were specified below are for consideration here. But neither this nor any other rule precludes one from saving an available exception to the submission of any issue to the jury on any specified ground, whether covered by the motion or not. Nor is one precluded from saving a question in any proper way whether he might have saved it otherwise or not. While this precise question does not seem to have been passed upon by this Court, *358
the practice has been as stated above; and when by some mischance one loses the benefit of an exception saved in one way, he may have the same benefit under an exception saved in another way. Thus in German v. Bennington Rutland R.R. Co.,
Bardis was allowed to give his estimate of the speed of the train, and the defendant excepted. That the witness's situation was such that any opinion on that subject that he might give would be of little probative value and might very properly have been excluded, is apparent. But we cannot say as matter of law that it was worthless, or that it was harmful. It was within the rule applied in Re Estate of Martin,
We are asked to limit the reversal made necessary by the error found to the question of liability, as was done in Griffin v.Boston Maine R.R.,
Judgment reversed and cause remanded.