Boston & M.R.R. v. Daniel, 218.

• Decision Date: 09 April 1923
• Docket Number: 218.
• Citation: 290 F. 916
• Parties: BOSTON & M.R.R. v. DANIEL.
• Court: U.S. Court of Appeals — Second Circuit

290 F. 916

BOSTON & M.R.R. v. DANIEL.

No. 218.

United States Court of Appeals, Second Circuit.

April 9, 1923

Writ of error to a judgment of the District Court for $23,750 in favor of plaintiff below against defendant below. The parties will be referred to as aligned below. The action was brought by the administratrix of the estate of Louis Daniel, to recover in her capacity as such administratrix for the death of Daniel, her husband, for the benefit of herself and several dependent children.

The declaration alleged that the proximate cause of the death of Daniel was the negligence of defendant in so operating one of its engines that it failed to ring the bell, blow the whistle, and keep a proper lookout on the engine, and that the engine was run at an excessive speed. Defendant denied the allegations of negligence, and alleged contributory negligence on the part of Daniel in driving on the track in front of the approaching engine, and that the engine was within his range of vision during a relevant period.

The accident occurred on June 14, 1921, at a grade crossing over the Boston & Maine Railroad in the town of Lyndon, Caledonia county, Vt., on a road leading from the state highway between the villages of Lyndonville and St. Johnsbury to the municipal electric light plant of the village of Lyndonville situate near what is known as the Great Falls on the Passumpsic river. This road, except for the railroad right of way, is through land now or formerly owned by the village of Lyndonville. The road crosses the railroad track at approximately a right angle. There was no evidence, nor is there any claim, that the road was ever laid out as a public highway, but plaintiff contended that it had been dedicated and adopted as such a highway. To that end certain testimony was received upon the trial, and the court submitted the following questions to the jury for a special verdict:

'First. Regardless of the statute requiring the whistle to be sounded or the bell rung, was the defendant negligent in running its engine over the crossing at the speed and in the way and manner it did, thereby causing the accident?'

'Second. Was the road leading over the crossing a public highway?'

The statute referred to in the first question, supra, is section 5173 of the General Laws of Vermont and reads as follows 'A bell of at least thirty pounds weight shall be placed on each locomotive engine, and be rung at the distance of at least eighty rods from the place where the railroad crosses a road or street at grade, and be kept ringing until it has crossed such road or street, or the steam whistle may be blown instead of ringing such bell.'

The plaintiff produced testimony to show that neither bell nor whistle referred to in the statute was sounded and this testimony was not controverted. It must therefore be assumed that the jury found that fact as testified to on behalf of plaintiff. Defendant contended that the Vermont statute did not apply, because the road leading to the electric light plant and crossing the railroad track was not a public highway. The court, after calling the attention of the jury to the statute supra, charged as follows: 'The court charges you, as a matter of law, that it was the duty of the defendant to ring the bell or blow the whistle at this crossing in accordance with the statute, and if you find that the defendant's failure to ring the bell or blow the whistle was the cause of the accident-- in other words, that the accident would not have occurred if the bell had been rung or the whistle sounded-- your verdict will be for the plaintiff to recover, unless you find Mr. Daniel was guilty of contributory negligence as hereafter defined.'

The court then charged the jury in respect of the common-law duty of plaintiff, regardless of the statute. At the close of plaintiff's case, defendant moved for a directed verdict and again moved at the conclusion of the whole case on the ground that no negligence had been shown on the part of defendant, and that plaintiff was guilty of contributory negligence. These motions were overruled, and exceptions duly taken by defendant. Various exceptions were taken to the charge of the court, including that part just above quoted, and various exceptions taken to refusals to charge. Defendant also excepted to the submission to the jury of each question for a special verdict. These exceptions were overruled, and exception in each instance was duly taken.

William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, Vt., for plaintiff in error.

J. Rolf Searles and Arthur L. Graves, both of St. Johnsbury, Vt., for defendant in error.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MAYER, Circuit Judge (after stating the facts as above).

The cause was carefully tried, and objections were made and exceptions taken by counsel for defendant in timely and accurate fashion. These exceptions present clearly certain vital questions in the case, which render unnecessary a detailed statement as to the circumstances of the accident. It is sufficient to state that, if defendant railroad came within the statute (General Laws of Vermont, Sec. 5173), the jury was justified in finding that it did not perform its statutory duty. In such circumstances, and passing by some questions raised as to the reception and exclusion of testimony, the important remaining questions would be whether the court erred (1) in charging as stated, supra; and (2) in failing to direct a verdict because plaintiff, as matter of law, was guilty of contributory negligence.

We do not find it necessary to discuss the latter question at length, because we think on the evidence that the question of contributory negligence was one of fact for the jury, although we shall point out the necessity of adhering to settled Vermont law in charging the jury on this point.

1. The first question is whether the word 'road,' in the Vermont statute, means private road or public highway. It will be noted that the words used are 'a road or street.' No one would seriously contend that 'street' meant other than a public highway. 'Street' is defined, for instance, in the Standard Dictionary as 'a public way * * * in a city, town, or village. * * * ' As said in Matter of the Application of Woolsey, 95 N.Y. 135, 140:

'In common parlance, the word * * * is supposed to relate entirely to the avenues and thoroughfares of cities and villages, and not to roads and highways outside of municipal corporations. * * * '

While this question is taken from a case which construes a provision of the New York Constitution, the definition, supra, is commonly accepted both in popular understanding and when used in statutes or ordinances. See, also, 7 Words and Phrases, p. 6684 et seq. It is plain, therefore, that the word 'streets,' as used in the Vermont statute refers to public highways within the corporate limits of cities, villages, or other municipal corporations. It was necessary, therefore, to refer in the statute also to those highways which were outside of municipal corporations in what may be called country sections of the state. Remembering that 'streets' referred to public highways, within a municipal corporation, the rule of noscitur a sociis applies to the word 'road,' as indicating a public and not a private road.

If any other meaning were intended, it would be normally expected that the statute would have read, 'a public and private road.' A statute of North Dakota of similar character was construed in Reynolds v. Great Northern Ry. Co., 69 F. 808, 16 C.C.A. 435, 29 L.R.A. 695. In that case, Judge Sanborn, in a thorough and comprehensive opinion, sets forth the reason leading to the conclusion that the word 'road' in such a statute means a public road or highway. In addition, it may be suggested that it is hardly to be supposed that the Legislature of Vermont would put on a railroad the burden of ascertaining each and every private road along its operated right of way. The owner of property for his own convenience might make and open a private road, and, if the statute were construed to mean 'private road,' then its obligations would at once come into play, even though the railroad would have no information as to the existence of the road. It is difficult to conclude that such a responsibility would be placed upon the railroad, at its peril, in the absence of clear language in the statute. Many cases have been cited in support of both contentions; i.e., that 'road,' in this statute, meant a public highway, and per contra meant a private road; but we agree with the views expressed by Judge Sanborn.

In the case at bar, the Vermont courts have not construed this statute, and therefore we have examined the various Vermont statutes called to our attention, in order to ascertain whether these statutes invite a different conclusion than has just been stated. In our opinion, the whole trend of the Vermont statutes dealing with highways and roads is that those two words are synonymously and alternatively used. Thus section 32 of General Laws reads:

'Highway; Road. The word 'highway' or 'road' shall include bridges thereon.'

Section 4480 reads:

'When application by petition is made to the county or Supreme Court, to discontinue a highway laid by commissioners appointed by either of such courts, which has not been built agreeably to the orders of such court, the petition shall be served on one or more of the original petitioners for the laying of such road, as well as on one or more of the selectmen of the town or towns through which the road is laid, or the same, on motion, shall be dismissed. * * * '

Similar synonymous use of these words is found in sections 4485, 4578, and 4579. It is unnecessary to prolong the...