95 Vt. 69 | Vt. | 1921
Slack, J.
The action is tort to recover for injuries to the plaintiff and damages to his farm tractor caused by a collision
At the close of all the evidence the defendant moved for a directed verdict on the grounds: (1) That there was no evidence tending to show negligence on the part of the defendant; and (2) that the plaintiff was guilty of contributory negligence as a matter of law. The motion was overruled, and the defendant had an exception. This exception we will now consider.
The track for some distance in each direction from the crossing runs north and south. The plaintiff’s house stands a few rods south of the crossing and west of the track. To get from his yard onto the highway and follow that east across the track it is necessary to make a sharp and continuous turn to the right. The morning of the accident the plaintiff drove the tractor from his yard onto the highway and followed that over the crossing, but, owing to the curve in the highway just east of the track, and his inability to guide the tractor, he ran it off the north side of the highway and against a log, causing it to stop.
The evidence was conflicting as to where the tractor then stood with reference to the defendant’s track, but it appeared that it was where it would not have been hit by a passing train. The plaintiff testified that he thought the rear of it, which was the part nearest the track, was five or six feet from the east rail, and that he knew the projection of the train beyond the rail was two feet. So that while the tractor stood where it first stopped it was not only in a safe place, but the plaintiff knew that fact. The case turns, therefore, on what occurred subsequently.
The train in question was running on schedule time the morning of the accident. The plaintiff testified that he knew when it was due at the crossing, and knew in a general way the number of trains and amount of traffic over the defendant’s road, that he was at the time an able bodied man, and that his senses of sight and hearing were good. His evidence, which was estimates only, tended to show that from the crossing, and from any point ten or twelve feet east of it, there was an unobstructed view of the track north at least 1,600 feet. It appeared from actual measurements that this distance was more than 2,000 feet.
This Court held in French v. Grand Trunk Railway Co., supra, relied upon by the defendant, that the evidence did not make a case for the jury on the question of last clear chance. There the plaintiff was crossing the'defendant’s track, at a public crossing, on foot, and was struck as he was stepping over the last rail. The evidence showed that when he went upon the track the train was so near the crossing that it was impossible for those in charge of it to stop it in season to avoid the accident. This fact was emphasized by the Court in the following lan
So, too, in Flint’s Admr. v. Central Vermont Ry. Co., supra, we held that the evidence did not raise a jury question under the last -clear chance doctrine. There the intestate drove upon the track with a single horse hitched to an open wagon. The horse was, “very quiet, easy to manage, and not easily frightened by a train of cars or anything, ” and as it approached the crossing “was walking at a fair gait in the middle of the road and was under the complete control of the intestate.” Ever after the intestate was within sixteen feet of the crossing he had an unobstructed view of the track in the direction from which the train was approaching for fifteen hundred or sixteen hundred feet. He was in full possession of all his faculties, yet he took no means to discover the train until his horse’s feet were on the crossing. He then saw the train, and at first partly stopped his horse, or pulled it back, as though to back up, and then urged it forward. He then had ample time to have backed off the track to a place of safety. Instead of 'doing so, however, he drove upon the crossing with full knowledge that the train was approaching, and then so near the crossing that it reached it before his wagon got over the track.
In LaMountain’s Admx. v. Rutland Railroad Co., 93 Vt. 21, 106 Atl. 517, the deceased, at the time of the accident, was engaged in snowing a crossing. He obtained the snow for this purpose at a point about twenty feet from the crossing, carried it on a shovel to the place where he wanted it, deposited it, and returned for more. The engineer and a brakeman who sat in the fireman’s seat saw the deceased and understood what he was doing, and when he approached the crossing the last time, and was ten or twelve feet from it, did all that was possible to stop' the train. Referring to the evidence on this point, the Court said: “There was no evidence in the case fairly and reasonably tending to show that the defendant’s servants, after they realized, or ought to have realized, HaMountain’s peril failed to do all in their power to save him.” The deceased was unincumbered in any way, and, so far as appeared, was in full possession of all his
In none of these eases did the evidence tend to show that the last clear chance was with the defendant; that is, that the defendant, by the exercise of reasonable care and prudence,' might have avoided injuring the plaintiff, or deceased, after it was too late for him to avoid being injured.
There was no evidence in the instant case that the persons in charge of the train actually saw the plaintiff after the tractor stood at the log, but this was not necessary to a recovery. If sufficient time elapsed after the plaintiff entered the danger zone so that it can be fairly said that the trainmen in the exercise of the care and diligence of a careful and prudent person ought to have discovered and comprehended his peril in season to have avoided the accident, knowledge will be imputed to them.
The evidence tended to show the speed of the train to be twenty to twenty-five miles an hour; that, if moving at the former speed, it could have been stopped in going 200 feet, and, if moving at the latter speed, it could have been stopped in going 240 feet. If running at either speed, it could have been stopped in less than' seven seconds. Those in charge of the train therefore had twenty-eight seconds in which to discover the plaintiff’s peril and take steps to avoid injuring him before action for that purpose was necessary.
Moreover, the train was approaching a public crossing where people had a right to pass and did pass frequently. This increased the risk of danger from collision and increased correspondingly the degree of care and diligence required of the trainmen in the performance of their duty to look out for persons who might be in peril at this crossing. A railroad company in running its trains must exercise care according to the circumstances, and where its track crosses a much-traveled street or highway, the company, as well as the public, is bound to exercise a degree of care commensurate with the danger.
We think the circumstances disclosed by the evidence were such that the jury was justified in finding that the defendant’s servants, in the exercise of due care and prudence, could have avoided the collision after a time when the plaintiff was powerless to save himself.
The defendant saved some exceptions to the charge, which, if sustained would result in a retrial. It says, however, that it
Judgment affirmed.