Arthur Yardley v. Rutland Railroad Co. And Abe Ruskin v. Rutland Railroad Co

• Decision Date: 07 January 1931
• Citation: 153 A. 195,103 Vt. 182
• Parties: ARTHUR YARDLEY v. RUTLAND RAILROAD CO. and ABE RUSKIN v. RUTLAND RAILROAD CO
• Court: Vermont Supreme Court

153 A. 195

103 Vt. 182

ARTHUR YARDLEY v. RUTLAND RAILROAD CO. and ABE RUSKIN v. RUTLAND RAILROAD CO

Supreme Court of Vermont

January 7, 1931

October Term, 1930.

Trial---Power of Courts with Respect To Consolidation of Different Causes or Their Trial Together---Discretion of Court---Railroads---Right of Railroad in Lawful Occupancy of Grade Crossing To Assume Automobilist on Highway Will Exercise Due Care---What May Be Assumed by Railroad with Respect To Control of Automobile---Judicial Notice---Presumptions---Train on Crossing as Warning, Making Immaterial Lack of Other Warnings---Statements by Trainmen after Automobilist Had Bun into Train Standing on Crossing To Show Their Knowledge of Situation and Danger.

1. Independent of statutory authority, courts of general jurisdiction have Inherent power to consolidate different causes, or order them tried together, when circumstances authorize such course.

2. Unless otherwise provided by statute, questions respecting consolidation of different causes, or ordering them tried together, are addressed to discretion of trial court, and its action will not be revised unless abuse of discretion clearly appears.

3. Where two cases grew out of same accident, and, so far a defendant's negligence was concerned, depended upon same evidence, court did not err in trying them together notwithstanding plaintiffs were not the same, and defense of contributory negligence might be involved in one case, but not in other.

4. Aside from statutory requirements, care and diligence required of railroad company in lawful occupation of grade crossings with its trains is measured by care and diligence which it has right to assume will be exercised by travelers on highway.

5. Railroad company has right to assume that traveler on highway, who is in exercise of due care and diligence, will adopt such rate of speed as will enable him to stop his car within distance he can plainly see train.

6. It is matter of common knowledge that freight cars are not all of same color.

7. Traveler on highway approaching railroad crossing is presumed to act in light of knowledge that freight cars are not all of same color.

8. Fact that train on crossing hid warning sign from automobilist when approaching crossing on highway, held, immaterial train, itself being notice of its presence on crossing.

9. That trainmen might have sounded whistle or rung bell on locomotive which was five to six hundred feet from crossing on which train was lawfully standing, and omitted to do so held not evidence of negligence, since, whether moving or standing still, train itself was warning of danger.

10. Evidence that, following collision of automobilist with train standing on crossing, one of trainmen said he thought light should be put on other side of train so no one else would hit them, held inadmissible to show negligence.

11. Evidence that trainman, shortly after collision of automobilist with train standing on crossing, stated that he had seen automobile coming and said it was going to hit train, offered for purpose of showing that train crew knew situation and danger, held properly excluded as having no tendency to show negligence on part of railroad.

ACTIONS OF TORT to recover damage sustained in collision with train standing on crossing. Plea, general issue. One action was for property damage, and the other for personal injuries. The court ordered the cases tried together, and trial was had by jury at the June Term, 1928, Bennington County, Sherburne, J., presiding. At close of plaintiffs' case, court granted defendant's motion for a verdict in each case. The plaintiffs excepted. The opinion states the case.

Judgment affirmed in each case.

Edward H. Holden, Francis E. Morrisey, and Norton Barber for the plaintiffs.

Frank C. Archibald and Edwin W. Lawrence for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

SLACK

Arthur Yardley drove an automobile which he hired from Abe Ruskin against one of defendant's freight cars that stood on a grade crossing of the latter's railroad. Yardley sustained personal injuries, and the automobile was badly damaged. Each party brought an action against the defendant predicated upon its negligence; Yardley to recover for his injuries, and Ruskin to recover for the damage to his automobile. The negligence relied upon was the same in both cases, the same counsel represented the respective parties in both, they were pending in the same court, and were ripe for trial. The trial court of its own motion ordered them tried together, to which each plaintiff excepted. These exceptions present the first question for review. These cases were not consolidated, but were simply tried together, and a separate judgment entered in each. This is spoken of in some of the cases as a consolidation. So, too, is the procedure under the so-called "consolidation rule" introduced into the English courts in the time of Lord Mansfield under which in certain instances a stay of proceedings was ordered in all but one of several cases, and the result reached in that case was made the basis for the disposition of the others. The failure to distinguish between these methods of procedure, neither of which, strictly speaking, is a consolidation, and actual consolidation, where several suits are merged and thereafter proceed to judgment as a single action, is doubtless responsible for some of the conflict found in the cases. Then, too, the procedure in the federal and many of the state courts respecting consolidation and the trial of several actions together is regulated by statute, which leads to still further confusion. The result is that no universal, or general, rule is deducible from the authorities.

Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different causes, or order them tried together, when the circumstances authorize such course; and unless otherwise provided by statute, questions respecting such procedure are addressed to the discretion of the trial court, and its action will not be revised unless an abuse of discretion clearly appears.

The rule respecting actual consolidation is stated thus in Corpus Juris, vol. I, p. 1124, par. 318: "Unless otherwise provided by statute, the conditions ordinarily prescribed as authorizing, and essential to authorize, a consolidation of actions at law are that the different actions shall be pending in the same court at the same time, between the same parties, and involving substantially the same subject matter, issues, and defenses."

But in most jurisdictions the requirement that the parties be the same does not obtain where several cases are merely tried together. In some states this condition is done away with by statute similar in effect to the federal statute which provides that, "when causes of a like nature or relative to the same question are pending before a court of the United States, or of a Territory, the court may make such orders," etc. (see Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 36 L.Ed. 706, 12 S.Ct. 909, and St. Louis I. M. & S. Ry. Co. v. Harden, 83 Ark. 255, 103 S.W. 614, and in others it is regarded as unessential in the absence of statutory elimination. The rule in Massachusetts, where there is no statute regarding the matter, is stated by Rugg, C. J., in Lumiansky v. Tessier, 213 Mass. 182, 99 N.E. 1051, 1054, Ann. Cas. 1913E, 1049, thus: "Where several causes are pending between the same or different parties which grow out of a single transaction or which involve an inquiry into the same event in its general aspects, although the details of evidence may vary materially in fixing responsibility, the court may order them tried together. But they continue separate so far as concerns docket entries, verdicts, judgments and all aspects save only the one of joint trial." See Bradford v. Boston & Maine Railroad, 225 Mass. 129, 113 N.E. 1042; Sullivan v. Boston Electric Light Co., 181 Mass. 294, 63 N.E. 904; Springfield v. Sleeper, 115 Mass. 587; Witherlee v. Ocean Ins. Co., 41 Mass. 67; Azinger v. Penn. Railroad Co., 262 Pa. 242, 105 A. 87; Reid v. Nichols, 166 Ky. 423, 179 S.W. 440; Benge's Admr. v. Fouts, 163 Ky. 796, 174 S.W. 510; St. Louis I. M. & S. Ry. Co. v. Harden, supra. In Bradford v. Boston & Maine Railroad and Azinger v. Penn. Railroad Co., the plaintiffs were different in the cases tried together, and they were the ones who challenged the court's action, but without avail.

It is clearly apparent that the reason for requiring the parties to be the same in causes actually consolidated does not exist where causes are simply tried together, but in all other respects retain their identity.

A careful examination of the question...