Arthur L. Miller v. Central Vermont Railway Co.

• Decision Date: 28 April 1921
• Citation: 113 A. 524,95 Vt. 69
• Parties: ARTHUR L. MILLER v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

113 A. 524

95 Vt. 69

ARTHUR L. MILLER v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

April 28, 1921

Special Term at Brattleboro, February, 1920.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1918, Windham County, Butler, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J W. Redmond and W. R. McFeeters for the defendant.

Barber Barber & Miller for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

The action is tort to recover for injuries to the plaintiff and damages to his farm tractor caused by a collision with one of the defendant's regular passenger trains at a grade crossing about one-fourth mile north of Vernon station, on the morning of April 13, 1917.

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.

The plaintiff testified, in substance, that after the tractor struck the log one Wright tried to move the log, but was unable to do so; that plaintiff looked for the train while Wright was thus engaged, and, not seeing it, decided to back the tractor away from the log, and did so as soon as he could start it, which took from half a minute to a minute. It did not appear that he looked for the train again until the tractor was on the track and the train within 15 or 20 feet of the crossing. The evidence all tended to show that when the tractor moved away from the log the train was where the plaintiff could have seen it had he looked. This being so, he was negligent in backing onto the track in the way he did, and his case must fail unless saved by the last clear chance doctrine. Harrington v. Rutland Railroad Co., 89 Vt. 112, 94 A. 431; Flint's Admr. v. Central Vermont Ry. Co., 82 Vt. 269, 73 A. 590; French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 A. 722; Carter v. Central Vermont R. R. Co., 72 Vt. 190, 47 A. 797; Trow v. Vermont Central R. R. Co., 24 Vt. 487, 58 A. D. 191.

The doctrine of the last clear chance may be stated thus: when the negligence of the defendant is proximate, and that of the plaintiff is remote, an action can be sustained. Therefore, if there be negligence on the part of the plaintiff, yet, if at the time when the injury is committed it might have been avoided by the defendant by the exercise of reasonable care and prudence and could not then be avoided by the plaintiff by the exercise of such care and prudence, an action will lie. So the fact that the plaintiff was negligent in getting onto the track and in remaining there will not bar a recovery if the defendant in the exercise of due care had an opportunity to avoid injuring him after he could not avoid being injured. At the moment the plaintiff's ability to avoid the accident ceased, his negligence became remote; and that of the defendant then became proximate if at the same moment or later it could by the exercise of reasonable care and prudence have avoided the accident, and failed to do so.

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 language: "He could have seen the danger and avoided it at a time when it was too late for the defendant's servants to stop the train and avoid a collision. There was no time when the defendant's servants could have stopped the train and avoided the injury, in which the plaintiff could not have avoided being injured by a vigilant use of his eyes, ears, and physical strength. "

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...