Alfred Zuverino v. Boston & Maine Railroad Co.

• Decision Date: 03 October 1928
• Citation: 143 A. 308,101 Vt. 261
• Parties: ALFRED ZUVERINO v. BOSTON & MAINE RAILROAD COMPANY
• Court: Vermont Supreme Court

143 A. 308

101 Vt. 261

ALFRED ZUVERINO v. BOSTON & MAINE RAILROAD COMPANY

Supreme Court of Vermont

October 3, 1928

February Term, 1928.

Master and Servant---Evidence---Testimony That No Signals Were Heard---Insufficiency of Evidence To Show Custom---Duty of Section Hand Working on Track Having Knowledge Train Was Due To Keep Watch---Contributory Negligence---Last Clear Chance.

1. Testimony of witness, situated at a point where he could hear the whistle of an approaching locomotive if sounded or its bell if rung, to effect that he heard no whistle or bell, is some evidence tending to show that no whistle was sounded nor bell rung.

2. In

ACTION OF TORT by section hand against railroad, for personal injuries received by him while cleaning snow from switch, by being struck by train, plaintiff's testimony that at other times when working on switches in same yard "always the bell was ringing," held insufficient to show evidence of a custom to warn workmen in such yard of approach of trains, where only other evidence in case relating to matter showed that bell was rung to warn persons in and around station, which was about 1,200 feet distant from place where plaintiff was when injured.

3. In such action, where plaintiff had knowledge that train was due and likely to arrive at any minute, it was his duty to keep a constant lookout for its approach so that he might step aside out of danger, and where evidence showed that had he been reasonably diligent in performance of this duty he would have seen engine in ample season to have avoided injury, held that failure to discharge such duty made him guilty of contributory negligence.

4. In such action, when evidence showed that there was no time prior to accident that trainmen could have averted accident and plaintiff could not, but negligence of plaintiff was operative up to very instant of accident, held that doctrine of last clear chance was not available to plaintiff.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the April Term, 1925, Windham County, Chase, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed and judgment for the defendant to recover its costs.

Stickney Sargent & Skeels for the defendant.

Present WATSON, C. J., POWERS, SLACK, and MOULTON, JJ., and SHERBURNE, Supr. J.

OPINION

SHERBURNE

This is an action of tort to recover damages suffered by the plaintiff while at work in the yard of the Central Vermont Railway Company at Brattleboro, on January 29, 1924, because of having been hit by an engine of the defendant. Four grounds of negligence were charged as follows: (1) Failure to keep a careful lookout; (2) failure to keep train under control; (3) failure to run the train at a safe, prudent, cautious and reasonable rate of speed; (4) failure to give warning of the train's approach. Verdict was for the plaintiff. The only exceptions briefed are to the refusal of the trial court to direct a verdict for the defendant upon the grounds: (1) That the evidence does not disclose that the defendant was negligent; and (2) that the evidence shows the plaintiff guilty of contributory negligence. Only the question of contributory negligence need be considered.

Exclusive of sidings there are two main tracks through the Brattleboro yard running generally north and south and parallel to Connecticut River. South of the station these tracks are owned and cared for by the Central Vermont Railway Company. Over these tracks pass the Central Vermont trains to and from New London. The more easterly of these two tracks is used by the Boston & Maine trains from Springfield, Massachusetts. The space between the two tracks is about eight feet in width. Switch No. 1, located about 1,200 feet southerly from the station, took care of a spur track from the west side of the westerly of the two main tracks. Its switch lever is midway between the two main tracks and about four feet from the nearer rail of each.

The Boston & Maine track from the south crosses the Connecticut River somewhat over 2,000 feet south of Switch No. 1, makes a reverse curve and joins the more easterly of the two Central Vermont main tracks at Switch No. 3. Its switch lever is east of the more easterly main track and is fifty feet southerly of Switch No. 1.

Between the more easterly of the two Central Vermont main tracks and Connecticut River is a spur or "snookie" track. This track intersects the Boston & Maine track at Switch No 4, 665 feet south from Switch No. 1. 169 feet north from Switch No. 4 is a clearance post to indicate the southerly point at which cars can be left standing on the "snookie" track. When cars are left standing on the "snookie" track as far south as the clearance post trains coming from the south over the Boston & Maine track are at first hidden from view, but the entire front of the engine can be seen by a person standing at Switch No. 1 when it is at least 623 feet away. There is another switch, called Switch No. 2, which is located east of the more easterly main track, and is about 25 feet south of Switch No. 1.

The plaintiff, a second hand of a section crew in the employ of the Central Vermont Railway Company, while near Switch No. 1 was hit by some part of the engine of train No. 75. This was a regular Boston & Maine passenger train from Springfield, Massachusetts, due in Brattleboro at 2:05 P.M.

The evidence taken most favorably for the plaintiff tends to show the following facts:

It had snowed about ten inches and at 1 P.M. the plaintiff was set to work cleaning the snow from Switch No. 1. He had a shovel and the stub of a broom. He was an experienced man. He had worked on the section for the Ceneral Vermont for four years, and during the past two years in the yard at Brattleboro. He had worked at Switch No. 1 a number of times. His eyesight and hearing were good. His ears were uncovered. The day was sunny, the sky was clear and the air was mild. There was no evidence of any disturbing noises or movements. He knew of and was expecting train No. 75, and had seen it come in on previous days.

Just before the accident the plaintiff was between the switch and the westerly rail of the easterly main track on which train No. 75 was to come in. He was stooped over brushing the snow out of the switch. His back was toward the Connecticut River and the easterly main track. His left side was toward the approaching train. He testified that he was listening for this train, waiting for its whistle, and that he turned his head to look for it every five seconds.

Another section hand, Hale, was just across the easterly main track opposite the plaintiff, and was cleaning the snow out of the ditch which drains from Switch No. 1 across this track. Another section hand, a Pollock, was cleaning Switch No. 2, and two section hands, Pellegrino and Amato, were working at Switch No. 3. All were expecting train No. 75 and were listening and looking for it while they worked. There were freight cars on the "snookie" track which obstructed the view of the train as it approached, but there was no evidence that they were stationed south of the clearance post. Hale testified that from where he stood he could have seen the train for 500 feet. The undisputed evidence of the defendant is to the effect that the plaintiff could have seen the train for at least 623 feet.

Before the train came into the yard the steam had been shut off and it was coasting. The engineer was at his seat on the right of the cab looking ahead, and the fireman was at his seat at the left also looking ahead. Both were...