93 Vt. 383 | Vt. | 1919
This action, brought under the Federal Employers’ Liability Act of 1908, is for-personal injuries suffered by the plaintiff at Island Pond, this State, on July 13,1917, while engaged in coaling defendant’s locomotive, No. 1018 (hereinafter referred to by number). The defendant is a common carrier by railroad, engaged in commerce between several states, and between states and a foreign nation. Thirty-two miles of its road are in Vermont, passing through the village of Island Pond, which is a divisional point. ■ Seventeen miles west of Island Pond
The declaration contains several counts; but it appears from the record that the negligence of which the plaintiff complained and on which he relied for a recovery, was either that the engine was negligently started by the man (Earl Norris) in charge, or ■ was by him negligently left in such a way that it started by its own action. In considering the questions presented for review, we observe these limits.
At the close of the evidence, defendant moved for a directed verdict on the grounds that on the evidence, taken in its most favorable light to the plaintiff: (1) Defendant was not guilty of actionable negligence;. (2) the starting of the engine by Norris was not an operation in the line of his duty, and if in the circumstances he started it, such act must have been for a purpose personal to himself or actuated by his own caprice; and (3) neither the defendant nor the plaintiff, at the time of the transaction wherein the latter was injured, was engaged in interstate commerce or in an act so closely related thereto as to be a part of it. On the exception saved to the overruling of this motion, rest the real contentions before us.
On the day of the accident, at five o’clock in the afternoon, 1018 arrived at Island Pond, hauling freight train No. 554, from Richmond, Ganada, and, as usual, was detached from the train and left by the engineer near the coal chutes, to be coaled. The plaintiff was then employed by defendant in the coal shed, doing all kinds of work toward unloading coal and coaling engines. He had been employed doing such work at that place the biggest part of the time for a large number of years. After the arrival of 1018, Norris, who was employed by defendant as a “fire dumper,” and had been so employed between two and three
This engine was ordered for freight train No. 551, which left Island Pond at six o’clock the next morning, and went with that train to Richmond. There was no direct evidence showing whether this order was general, covering some length of time, or special, for that trip only; nor that it was issued before the accident; nor that the injury was suffered by the plaintiff when engaged in coaling the engine for that run. But the undisputed evidence showed that on all week days (the trains did not run Sundays) during the entire month of July this engine was making that same run, that is, it went from Island Pond to Richmond one day and returned from Richmond to Island Pond the next day, except on July 3d another engine was used to haul that train; that 1018 was used for no -other purpose during that month; that it was on that run for the year 1917, except there might have been one or two trips when another engine was substituted. It further appeared that on March 11th this engine arrived from Richmond at 5:45 a. m., was used in switching service later in the-day, and left with a special freight train for Richmond at 5 p. m.; that on January 28th (which by common knowledge was Sunday) it was ordered for a work train to Norton Mills at 8 a. m., doing work on defendant’s roadbed; that on June 24th it went from Island Pond to Richmond and came back on the 27th; that between September 11th and November 12th, it was out of Island Pond (the witness thought) in defendant’s shop in Montreal, as it was given general repairs about that time; that it left Island Pond on December 22d and came back on the 27th. Every freight train and every passenger train which comes into, or leaves, Island Pond, is interstate or international.
In simple form the question under discussion comes to this: Engine 1018, making its regular trips, arrived in Island Pond at 5 p. m., on the day of the accident, as an instrumentality of international and interstate commerce, and left there at 6 a. m., next morning, as such an instrumentality. Did it by being de
Supplying the locomotive with coal and water, and looking after the fire, on coming into that terminal, were acts essential to the locomotive’s further ef&cient operation, but having, no tendency to show an interruption in its international work; but rather, in the circumstances including the time of day and .the early hour of its departure the next morning on its regular trip, they were acts which might reasonably be considered as tending to show preparation for that run. Considering therewith that the evidence was such as (we think) reasonably to-warrant a finding that this locomotive was destined for such run, by- an order issued prior to the time of the accident, it seems clear that, as the case stood, the question of whether the engine and the plaintiff were, at the time in question, engaged in an act so closely related to international or interstate commerce as. to be practically a part of it, was for the jury to determine under proper instructions. Lynch v. Central Vermont Ry. Co., 89 Vt. 363, 95 Atl. 683; Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 Atl. 908. It has been held by the Supreme Court of the United States that if an employee is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal Employers’ Liability Act, although the accident occurred prior to the actual coupling of the engine to the interstate cars. New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 59 L. ed. 1298, 35 Sup. Ct. 780; North Carolina R. Co. v. Zachary, 232 U. S. 248, 59 L. ed. 591, 34 Sup. Ct. 305, Ann. Cas. 1914 C, 159.
The other two grounds of the motion are so connected as to make it more convenient to consider them together. It is unnecessary to repeat the facts already stated leading up to spotting the engine to receive coal. Norris was the only person in the cab. Concerning just what took place resulting in the injury, there was no direct testimony except that given by the plaintiff and by Norris (called as a witness by plaintiff),, the only persons present, or having any knowledge thereof.' The former- testified that, standing on the side of the tender, the engine being at a standstill, he reached up with the poker having a hook on the end of it, to pull the chute down, and as he
It should .be noticed in this connection that in effect the plaintiff’s testimony was that the engine started and simultaneously therewith he fell. He did not undertake to state the cause of the engine’s starting. It should be further noticed that Norris simply says that just before plaintiff fell the engine was standing still, and that he did not move it. He does not say that the engine did not start, nor that plaintiff’s fall was not simultaneous therewith. So in these important particulars there AAras no conflict in the testimony given by the two.
There was no evidence in the case tending to show that - Norris moved the engine; on the contrary, the evidence precludes such a theory. So the only inference that could be drawn as to the cause of the accident, was some defect in the engine, or want of care in managing and controlling it. Since in the trial no claim of defect was made, the sole question on this branch of the case is: Did the evidence fairly tend to show the efficient cause to have been negligence in managing and controlling the engine? There was no evidence of such negligence, unless the principle res ipsa loquitur applies, concerning which, more anon.
It appeared that the track AA'here the engine was placed in front of the chute was level. One of plaintiff’s witnesses, a locomotive engineer of much experience, being asked, as an expert, what had to be done to start an engine like 1018, when standing stock-still on the track on a location like that, answered: ££ Assuming that the engine was left properly at that place, the reverse lever would have to be moved away from the center a sufficient distance and the throttle opened, also assuming the engine was in a proper condition.” Continuing, the witness further testified that, assuming an engine like 1018 is standing still on a level, if the brakes are not properly set the engine may
It was conceded by defendant that in moving 1018 to the coal chute and spotting it there to be coaled, Norris was acting in the line of his duty; but in connection with this concession defendant claimed.that if Norris moved the engine after it was thus spotted and just before the plaintiff fell, there was no reason for his so doing; and there was nothing to indicate it was in the line of his duty, because, admittedly, the engine was properly placed to be coaled, in the first instance. The ease of Ploof v. Putnam, 83 Vt. 252, 75 Atl. 277, 26 L. R. A. (N. S.) 251, 138 Am. St. Rep. 1085, is relied upon as an authority for the proposition that if Norris moved the engine for his own purpose, or at his own caprice, defendant is not liable for injuries resulting therefrom. But since such a cause was completely negatived by the evidence, this position need not be further noticed. By that same authority, if, in placing the engine to be coaled, Norris negligently left the lever away from the center, or the throttle open, so that the steam escaped into the cylinders, by reason of which the engine started automatically, or if he negligently left the brakes in such a way that the engine could and did, by reason thereof, so start, his wrongful acts were in the performance of the duties of his employment, and the defendant is responsible for resulting injuries.
The evidence' showed the accident to have been such as in the ordinary course of things does not happen where those having the management and control of a locomotive like the one in question, standing still on a level track, use proper care,-and
All other questions presented in argument relate to the charge. The first of the exceptions of this class was to the submission to the jury of the question of interstate commerce; and the eighth was to the submission of the question of whether the locomotive started of itself. In effect, these two exceptions have already been disposed of.
The fifth, sixth, and seventh of these exceptions, relate to the charge touching the finding of the jury on the question as to whether, at the time of the plaintiff’s injury, locomotive 1018 was engaged in interstate commerce, and the basis of such finding. We think the instructions in this respect were substantially in accord with the holdings above, on this branch of the case under the motion for a verdict, and without error.
Exception was taken to the charge on the question of future damages. The jury were instructed that it was proper for them to consider plaintiff’s loss of time, not only up to the time of the trial, but also such inability and incapacity to work in the future, as they should find established by the evidence; that they'must use the evidence as a basis for any allowance they might make in this regard; that it could not be done upon speculation or conjecture. Also that they had a right to include such damages for his pain and suffering, past and future, measured in the same way, as in their judgment, bn the evidence, the plaintiff was entitled to. The grounds of the exceptions were that the length of time of such inability and incapacity to work, and the amount of future pain and suffering, were, on the evidence, matters of pure speculation. But we hardly think this was so. Apart from such evidence as could be given only by medical experts, the plaintiff testified fully regarding his injuries, his pain and
The other examining physicians testified to finding the same conditions, but more in detail. One of them said whether the plaintiff’s recovery would be complete eventually, he could not say; that it was not impossible that he was having a beginning degeneration of the nerves from the terminal ends, and that this; condition would grow worse, but the witness thought he would improve. The other physician had examined the plaintiff twice before within a week. He testified that he should not think the plaintiff would be well a year hence, and might be worse off,- and. being asked what he would say as to plaintiff’s being well within two years, the witness said such a case was very slow in recovery, and at plaintiff’s age the prognosis was worse than though he were a young man.
The evidence showed that the nature and extent of plaintiff’s injuries, his past improvement, and his condition at the time of the trial, were such as to render it practically impossible to tell, with any great degree of certainty, the length of time be
Judgment affirmed.
