Bates v. Rutland R. Co.
| Decision Date | 02 May 1933 |
| Citation | 165 A. 923 |
| Court | Vermont Supreme Court |
| Parties | BATES v. RUTLAND R. CO. |
Exceptions from Bennington County Court; John C. Sherburne, Judge.
Action by Marjorie Bates against the Rutland Railroad Company. Judgment for plaintiff, and defendant brings exceptions.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
E. J. Hall and Fenton, Wing, Morse & Jeffords, all of Rutland, for plaintiff.
Edwin W. Lawrence, of Rutland, and Frank C. Archibald, of Manchester Center, for defendant.
The plaintiff brings this action to recover damages for injuries which she sustained in a railroad crossing accident. The accident occurred on October 13, 1931, at about 1:30 p. m., when an automobile driven by the plaintiff collided with an engine drawing a freight train of eighteen cars in a westerly direction over defendant's main line. It is not questioned that the verdict establishes negligence on the part of the defendant for failure to give the usual crossing signals with bell or whistle. The defendant by appropriate exceptions presents for review the question of the plaintiff's contributory negligence as a matter of law.
In the consideration of this question, we are to be guided and governed by principles well established in our cases. The plaintiff has the burden of showing freedom from contributory negligence (Shumm's Adm'x v. Rutland Railroad Co., 81 Vt. 186, 192, 69 A. 945, 19 L. R. A. (N. S.) 973), but the question is not one of law for the court unless it appears from undisputed facts, from the plaintiff's own evidence, that she was not in the exercise of that degree of care which a careful and prudent person would exercise in circumstances of like exposure and danger. Carter v. Central Vermont Railroad Co., 72 Vt. 190, 192, 47 A. 797. If the evidence, taken in the light most favorable to the plaintiff, is of such quantity and character that reasonable minds might draw different conclusions respecting the plaintiff's fault, then the issue was properly submitted to the jury. Wellman, Adm'r, v. Wales, 98 Vt. 437, 448, 129 A. 317; Carter v. Central Vermont R. R. Co., supra; Sherwin v. Rutland R. R. Co., 74 Vt. 1, 4, 51 A. 1089; Shields et al. v. Vermont Mutual Fire Insurance Company, 102 Vt. 224, 237, 147 A. 352.
The accident occurred at the Sunderland crossing, where the highway leading from East Arlington to Manchester crosses three railroad tracks of the defendant at grade. The record treats of the highway at this crossing as running north and south, and the tracks as extending east toward Manchester, and west toward Bennington. The main line is the most northerly track, next to it is a passing track, and the one farthest south is a spur track. The distance from the south rail of the spur track to the south rail of the main line is 24 feet. The plaintiff approached the crossing from the south. That conditions there existing presented a situation of danger is apparent. The view of the tracks easterly and westerly from the crossing to one so approaching was considerably restricted by obstructions. The tracks to the east run through a cut, which, on the south, is about 16 feet high, and extends close to the tracks at the crossing. The view to the west was more or less obstructed by trees, and also by two box cars on the spur track west of the crossing. From a point 150 feet soutli of the crossing, a traveler could see at different times and at different places the track to the west for a considerable distance, except the part directly north of the two box cars, a space of 70 to 80 feet. As one approached to a point about 42 feet south of the south rail of the main line, the view to the west was almost wholly obstructed by these cars. Until that point was reached there was no effective view of the tracks to the east.
The plaintiff approached the crossing with her eaj." in second gear and at a speed of 5 to 10 miles an hour. She was familiar with the crossing, having driven over it many times, and as she proceeded toward it, she was looking and listening for approaching trains. Until she reached the point 42 feet south of the main track, her looking was directed towards the west; her view to the east up to that time being obstructed by the high embankment. She then looked towards the east. Just how long the plaintiff looked in that direction at this point, what she saw, or must have seen if she looked, was sharply contested at the trial, and much space is taken in the briefs to indicate to us the tendency of the evidence, particularly the plaintiff's own testimony, on that issue. Though the testimony of the plaintiff was confusing in its contradictions and inconsistencies, it was still for the jury to weigh and consider. Robey v. B. & M. Railroad, 91 Vt. 386, 388, 100 A. 923; McDonald v. McNeil, 92 Vt. 356, 361, 104 A. 337; Shields et al, v. Vermont Mutual Fire Insurance Company, 102 Vt. 224, 237, 147 A. 352; Webster v. Canadian Pacific Ry. Co., 103 Vt. 460, 467, 156 A. 524. If, as the defendant contends, the plaintiff continued looking towards the east until she was on the spur track (she so stated in reply to questions both by counsel and the court), she had a clear view of the track for a distance of over 600 feet; the train was then in her sight, and must have been seen by her in ample time to have stopped her car and avoided the collision. In these circumstances contributory negligence would be imputed to her as a matter of law. Labelle v. Central Vermont By. Co., 87 Vt. 87, 91, 88 A. 517; Harrington v. Rutland Railroad Co., 89 Vt. 112, 120, 94 A. 431. The plaintiff's statements in her testimony to the effect that she last looked towards the east when she was on the spur track were informal admissions, to be sure; but, unlike judicial admissions, they were not conclusively controlling against her, as a matter of law. Wiley v. Rutland Railroad Co., 86 Vt. 504, 508, 86 A. 808. A careful analysis of the plaintiff's testimony shows that the jury, acting reasonably, might have found these facts: That when the plaintiff was 42 feet south of the main track, she looked east and had a view of the track in that direction to the passing switch, a distance of 302 feet; that no train was in sight; that she listened and heard none; that her view to the west from that point was obstructed by the box cars on the spur track; that after looking towards the east, she immediately turned her attention to the west and continued to look in that direction until she had passed the northeast corner of the easterly box car, where she had a clear view of the main track to the west for a distance of over 1,200 feet; that she was then on the spur track and about 17 feet from the south rail of the main track; that she again looked towards the east, and the train was very close to the crossing; that she applied her brakes, but too late to prevent her car from hitting the engine just back of the pilot. The distance from the main track just stated indicates the plaintiff's position. The front of her car was in each instance 6 feet 9 inches nearer the track. The overhang of the train was 2% feet. The plaintiff's car when traveling at a speed of 5 to 10 miles an hour could be stopped within 13 1/2 feet after application of the brakes.
This court has many times stated what conduct was required of the plaintiff to avoid the imputation of contributory negligence. The rule is fully stated in Harrington v. Rutland Railroad Co., 89 Vt. 112, 118-119, 94 A. 431. It was the duty of the plaintiff as she neared the crossing to look and listen for approaching trains, and, if necessary to enable her to listen effectively, to stop to listen. Duty required her to continue to look and listen as she approached the track until the last moment when the discovery of the train would have availed for her protection. She was chargeable with such knowledge of the approach of the train as she might have obtained by such vigilant use of her senses as a careful and prudent person would make in the circumstances. If by the vigilant use of her sight and hearing she might have discovered and avoided the danger, and she omitted such vigilance, she was guilty of contributory negligence. Manley v. D. & H. Canal Co., 69 Vt. 101, 37 A. 279; Carter v. C. V. Ry. Co., 72 Vt. 190, 47 A. 797; Goodwin Adm'x v. Gaston et al., 103 Vt. 357, 363, 154 A. 772. If her vision was obstructed, she should have been especially vigilant as regards her hearing. Shumm's Adm'x v. Rutland R. R. Co., 81 Vt. 186, 192, 69 A. 945, 19 L. R. A. (N. S.) 973.
We must not overlook the fact that the plaintiff was beset with many dangers. About 60 feet south of the crossing she passed an intersecting highway from the west, which required her to be watchful for possible approaching highway traffic from that direction; her effective view of the tracks to the west, as we have seen, was interrupted as she approached nearer to the crossing, and she was required to be as vigilant for trains from that direction as from the east; her view of the highway over which she was traveling-was obstructed a short distance northerly of the crossing by a sharp curve, and she was required to be watchful for traffic which might be approaching her from that direction.
In these circumstances, can it be said that the plaintiff was guilty of contributory negligence, as a matter of law, in looking to the west and not to the east during the space of time required for her to travel from a point 42 feet south of the main track to a point 17 feet south of it? We think not. At most, the time was only a few seconds. See Kinghorn v. Pennsylvania R. Co. (C. C. A. N. Y.) 47 F.(2d) 588. Having taken as effective a view to the east as the situation allowed, it was only natural that the last look should be towards the west, since the view in that direction had just been wholly obstructed. In these circumstances she had a right to rely somewhat upon the statutory...
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