Cano v. Cent. Vt. Ry. Co.
| Decision Date | 01 October 1929 |
| Parties | CANO et ux. v. CENTRAL VERMONT RY. CO. |
| Court | Vermont Supreme Court |
Exceptions from Washington County Court; John C. Sherburne, Judge.
Action by Jose Cano and wife against the Central Vermont Railway Company, to recover the value of cedar posts and poles alleged to have been damaged by fire communicated by one of defendant's locomotives, in which defendant pleaded the general issue. Verdict for plaintiffs, and defendant' brings exceptions. Affirmed.
Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and WILLCOX, JJ.
Dean C. Davis and John W. Gordon, both of Barre, for plaintiffs.
Horace H. Powers, of St. Albans, for defendant.
The place of the fire in question was in plaintiffs' pasture and woodland, located along and adjoining the right of way of the Central Vermont Railway Company, between Montpelier and Barre, on its westerly side, and near what is known as Barre or Williamstown Junction, situated some more than a mile from the station at the city of Barre. From that junction there is another line of track on the right-hand or westerly side, which connects with the mainline track, and which goes to Williamstown. The point of this junction with the main line is on the westerly side of Winooski river and nearly opposite Jones Brothers' granite sheds on the other side of the river, and near this junction is a siding or spur track on the easterly side of the main track, to which siding or spur track granite stone chips and grout were drawn from stone sheds in Barre, by the switching engine in Barre yard, to be dumped over the bank.
The plaintiffs' said land adjoins defendant's right of way for about three miles, being separated from it by a wire fence. On some parts of this land, cedar trees had grown of different sizes, many suitable for fence posts, and some large enough for telephone poles and the like. In the winter of 1925-26, plaintiffs had a large number of such posts and poles cut and piled in various places on said land. Plaintiffs' evidence tended to show that at the time of and by the fire in question, not less than 3,500 of the posts thus cut and piled, nor less than 200 of the poles thus cut and piled were destroyed.
At the close of all the evidence, defendant moved a verdict be directed in its favor on the grounds: (1) That the evidence, construed most strongly in favor of the plaintiffs, had failed to show a cause of action; and (2) that defendant, as a matter of law and as a matter of fact, had discharged its statutory duty.
No evidence was introduced on the part of plaintiffs, in their opening case, tending to show the particular day on which the fire occurred; their evidence, however, was all subject to the construction that it was in April, 1927. But the day of its occurrence was later definitely shown by defendant as April 11 of that year. Plaintiffs introduced no further evidence on that question. After defendant had thus shown the exact day of the fire, the trial seems to have been conducted by both parties on the theory that this was the true day; and neither party was injured by the action of the court in this respect. No further attention will be given to articles V and VI of defendant's brief.
That the time of the fire was in the forenoon of the day, all the witnesses testifying thereon agreed; but they varied somewhat in the hour from shortly before 8 o'clock to the middle of the forenoon, most of them placing it somewhere between the hour first named and 9 o'clock.
Plaintiffs' evidence tended to show that at the time the fire occurred the snow there had been gone about three weeks, the ground was dry, and there were bushes and grass and small plants on each side of the wire fence.
The plaintiff Jose Cano testified that from his house to the railroad track at Barre Junction was about half a mile; that the first he noticed anything of a fire was about 8 or 8:30 o'clock in the morning, at which time he observed a smoke, and soon saw that the fire was next to the railroad track; that he heard a train, drawn by a locomotive engine, pass on the railroad track between 15 and 25 minutes before he saw the smoke; that, when he saw the smoke, he started to see where the fire was; that, when he reached the place of the fire, quite a piece of ground had burned over, how much the witness could not say; that he saw a lot of fire in the piles of posts and poles, and he started trying to stop it; that about 3 1/2 acres of land were burned over before the fire, at the end of about 2 hours, was brought under control; that the tracks of the fire showed that it burned over the ground both sides of the fence next to the railroad right of way; that the posts and poles destroyed were all on plaintiffs' land, and burned beyond use.
The testimony of this plaintiff, thus taken down in the form of answers to interrogatories, was received subject to the same objection as is stated below, and is disposed of in connection with the testimony of the witness Theriault.
In cross-examination, this plaintiff testified that he never saw any tramps around in that neighborhood, nor did he ever see anybody light a fire on plaintiffs' land, nor on the railroad right of way; that a strong wind was blowing at the time of this fire, from the railroad track towards plaintiffs' land, "up towards the top."
One Columbo, a witness called by plaintiffs, testified that he was in the employ of defendant, and had been for four years, as a section hand; that as such employee his duties consisted in putting in ties, walking track, and second boss once in a while; that during the month of April, 1927, it was part of his duties to walk a portion of the spur track and main line track running out of Barre on the defendant railroad to Montpelier; that on the morning of this fire witness walked the track from Barre station toward Montpelier, 3 miles down to Intercity Park, so called, and 3 miles back, 6 miles; that, as he then walked down the track, there was no fire on the right of way and none on plaintiffs' land near Barre Junction; that, when witness walked back up the track to that place, there was a fire there, which had got over onto plaintiffs' land; that he then saw "a fire started there or going," and he went to put it out; grass and small trees were burning; that, when he got there, the grass near the fence and next to the railroad track "was already burned," and up across from the fence the fire was still burning. The witness, being asked to tell what time he first noticed the fire, answered, "I imagine around 10 o'clock or so." Being recalled by defendant, this witness said he imagined his attention was first called to it a little after 9 o'clock. He testified that he saw no one else at the point where the fire was until he got back there; that he remained there working until the fire was all out.
Defendant's section foreman at the time of this fire, his section extending from a point 3 miles south of Dodge's bridge up to Barre, testified that the fire in question was near his section; that on the morning of the fire he was working about 125 feet toward Barre from Barre Junction, and that the yard limit was about 300 feet from the junction point toward Montpelier; that he saw the shifting engine (391) when it came from Montpelier the morning of and before the fire, but only once in that forenoon; that the fire was all where the cedars had been cut.
Plaintiffs' witness, one Theriault, a section hand, who had worked for defendant in that capacity for 2 years, off and on, at the time of the fire, and on the morning of the fire had been working near its location, testified that he saw two steam locomotives that morning, although in cross-examination he said it possibly was the same locomotive twice, passing the place where the fire occurred; in effect, the second time by backing down to let the gas electric unit go up through. The same witness further said that engine 391 had come through from Montpelier a short time before he noticed the fire, and this train, other than the Williamstown train, was the only train noticed by him that morning before the fire occurred; that he had been working in the vicinity of this junction point all the morning; that he had seen trains at that same place on other occasions during the year next before this fire; that there was then the same locomotive engine on this branch line from Montpelier to Barre, drawing the freight trains, as was drawing the freight train in the same direction over that line on the morning of the fire in question, and before it was noticed; that apparently the beginning of the fire was down next to the railroad track.
This witness, having testified that, when his attention was first called to the fire, he saw dense smoke of all colors, further stated:
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