Cano v. Central Vermont Ry. Co.
| Decision Date | 01 October 1929 |
| Citation | 147 A. 276,102 Vt. 161 |
| Parties | JOSE CANO ET UX. v. CENTRAL VERMONT RAILWAY CO |
| Court | Vermont Supreme Court |
May Term, 1929.
Railroads---Negligent Setting of Fires by Locomotive---Evidence of Engine Emitting Sparks on Previous Occasions---Jury Question---Burden of Proof---G. L. 5256.
1. In action against railroad company to recover damages for loss of personal property situated on plaintiffs' land adjacent to defendant's right of way, by fire alleged to have been communicated from one of defendant's locomotives, evidence that witness had observed engine emitting sparks and cinders out of its stack at times during year previous to fire, held admissible, where evidence tended to show engine referred to on each occasion was same as one claimed to have set fire.
2. In such action, evidence construed most favorably to plaintiffs held to make question of defendant's negligence for jury and consequently court did not err in overruling defendant's motion for a directed verdict on ground that plaintiffs had failed to show a cause of action by evidence sufficient to carry case to jury.
3. In such action, held that evidence failed to establish as matter of law that defendant had performed its full statutory duty as to which, under provisions of G. L. 5256, burden of proof was shifted from plaintiffs to defendant, inasmuch as defendant introduced no evidence tending to show that it did not at time place engine in question in charge of unskilled and imprudent persons, or that management of engine was not in an unskilled and imprudent manner.
ACTION OF TORT to recover value of certain personal property situated on plaintiffs' land adjoining defendant's right of way, destroyed by fire alleged to have been communicated from one of defendant's locomotives. Plea general issue. Trial by jury at the September Term, 1928, Washington County, Sherburne, J., preseding. Verdict for plaintiff, and judgment thereon. The defendant excepted. The opinion states the case. Affirmed.
Judgment affirmed.
Horace H. Powers for the defendant.
Deane C. Davis and John W. Gordon for the plaintiffs.
Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.
This is an action to recover the value of certain property in Barre, consisting of cedar posts and cedar poles, alleged to have been damaged by fire communicated by one of defendant's locomotive engines. Plea, general issue. The jury returned a verdict in favor of the plaintiffs, and the case is here on defendant's exceptions. Reporter's transcript of the proceedings at the trial, together with all the exceptions in the case are referred to, made a part of the bill of exceptions, and to control.
The place of the fire in question was in plaintiffs' pasture and wood land, 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 city of Barre. From that junction there is another line of track on the right-hand or westerly side, which connects with the main line 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 eight o'clock to the middle of the forenoon, most of them placing it somewhere between the hour first named and nine 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 eight, or eight and one half, 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 fifteen and twenty-five 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 three and one-half acres of land were burned over before the fire, at the end of about two 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 three miles down to Intercity Park, so-called, and three miles back, six 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 ten o'clock or so." Being recalled by defendant, this witness said he imagined his attention was first called to it a little after nine 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 three 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...
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...(1905). 80. Dyer v. Lalor, 94 Vt. 103, 115-116 (1920). 81. See Pennock v. Goodrich, 102 Vt. 68 (1929); Cano v. Central Vermont Ry. Co., 102 Vt. 161 (1929)._ ...