Castonguay v. Grand Trunk Ry

Citation91 Vt. 371,100 A. 908
PartiesCASTONGUAY v. GRAND TRUNK RY.
Decision Date01 May 1917
CourtUnited States State Supreme Court of Vermont

Exceptions from Essex County Court; E. L. Waterman, Presiding Judge.

Action by Ambroise Castonguay against the Grand Trunk Railway. Verdict and judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

C. R. Powell, of Island Pond, and Simonds, Searles & Graves, of St Johnsbury, for plaintiff. Drew, Shurtleff, Morris & Oakes, of Lancaster", for defendant.

POWERS, J. The action is brought under the federal Employers' Liability Act, and is to recover for personal injuries sustained by the plaintiff while in the defendant's employ at Island Pond, Vt. The defendant is a common carrier operating a railroad from Montreal, P. Q., through Vermont and New Hampshire to Portland, Me. Island Pond la a terminal point, and all engines are changed there, and the defendant has there a roundhouse in which its engines used to haul interstate trains are housed, inspected, and repaired. Shortly before the plaintiff received his injuries, an engine accidentally backed through the wall of this roundhouse; and John Leblanc, a regular employé of the defendant and acting in its behalf, engaged the plaintiff to assist him in repairing this wall. In the course of the work, it became necessary to remove a large window and frame; and while the plaintiff and others were, under the direction of Leblanc, engaged in its removal, it fell upon him and caused the injuries complained of. The trial below resulted in a verdict for the plaintiff, and the defendant alleges error.

The plaintiff moves to dismiss the exceptions, and the first question for our consideration arises under this motion. The defendant seasonably filed a bill of exceptions signed by the presiding judge, which closes with this statement in his handwriting:

"This is allowed as a skeleton bill of exceptions, subject to amendment in forty (40) days from date."

Within the time thus limited, the presiding judge signed and filed another bill, the closing paragraph of which reads as follows:

"The exhibits used in the trial are referred to and made a part of these exceptions. One copy of the transcript should be furnished the Supreme Court, but need not be printed. The transcript is referred to and made a part hereof, and is to control."

The usual clause, "Exceptions allowed, execution stayed, and cause passed to the Supreme Court," is wholly omitted. The plaintiff insists that such a bill is insufficient in two respects: Because it does not contain an order allowing the exceptions, and because it does not contain an order passing the cause to this court. But it is unnecessary to pass upon these questions, for later on the presiding judge, on application by the defendant, made an order extending the time for amending the bill to October 3, 1916. And a hearing having been had thereon, on October 2, 1916, he made and filed an order that the bill be amended by adding thereto the following:

"The foregoing is allowed as an amended bill of exceptions, in substitution for the skeleton bill previously filed, execution stayed, and cause passed to the Supreme Court."

If this order was within the authority of the presiding judge the amendment became a part of the bill, and the motion to dismiss must be overruled. And the order was within his authority, as it was made before the case was argued in this court, and under our practice, the presiding judge retains jurisdiction over the bill of exceptions for the purposes of amendment until the cause is heard before us, at least. Until then, he may at any time amend the bill, and the amendment becomes a part of the record before us. Bailey v. Saunders, 90 Vt. 39, 96 Atl. 416. Indeed, it sometimes happens that the argument before us is suspended that such an amendment may be made.

At the close of the plaintiff's evidence, the defendant moved for a nonsuit, on the grounds that: (1) Upon all the evidence there was no question of fact for the consideration of the jury; and (2) the plaintiff had failed to show that he was engaged in interstate commerce at the time of the injuries of which he complains. This motion was overruled, and the defendant put in its defense. At the close of all the evidence, the defendant renewed its motion, then denominating it a motion for a verdict.

According to the early holdings of this court, a party who appears and complies with the rules and orders of court will not be nonsuited against his will. Brown v. Munger, 16 Vt. 12. Whether a different practice has since grown up, see Carr & Blanchard v. Manahan, 44 Vt. 246, and Porter v. Platt, 57 Vt. 533; Stevens v. Blood, 90 Vt. 81, 96 Atl. 697, we need not now inquire. The difference between a motion for a nonsuit and a motion for a verdict, except as to their effect upon the right to bring a new suit, is rather a matter of form than of substance. Oscanyan v. Winchester R. Arms Co., 103 U. S. 261, 26 L. Ed. 539; Cent. Trans. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55.

And the transcript shows that when the motion was first made it was fully discussed, and no one suggested that it was insufficient to raise the question of the right of the plaintiff to go to the jury. Both court and counsel treated it as a motion for a directed verdict. It was so styled at the close of all the evidence, the only time here important. In these circumstances we treat it as it was treated below, as a motion for a verdict. See Squires v. Squires, 53 Vt. 208, 38 Am. Rep. 668.

The ground of the motion first above stated was expressed in terms too general to require consideration. A motion for a verdict must point out the precise ground on which it is predicated; otherwise it is not error to overrule it. It has repeatedly been so held by this court. State v. Nulty, 57 Vt. 543; Bickford v. Travelers' Ins. Co., 67 Vt. 418, 32 Atl. 230; State v. Dyer, 67 Vt. 690, 32 Atl. 814; German v. Ben. & Rut. R. Co., 71 Vt. 70, 42 Atl. 972; Sartwell v. Sowles, 72 Vt. 270, 48 Atl. 11, 82 Am. St. Rep. 943; Terrill v. Tillison, 75 Vt. 193, 54 Atl. 187. In so far as French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 Atl. 722, is to the contrary of this holding, it is hereafter to be disregarded.

The other ground of the motion is more difficult. The question presented under it is a federal one, and the decisions of the Supreme Court of the United States must be accepted as authority. Prom these it appears, either expressly or by inference, that the following employés, when engaged as stated, were working in interstate commerce: A car repairer, replacing a drawbar in a car then in use in interstate transportation. Walsh v. New York, N. H. & H. R. Co., 223 U. S. 1. 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. A fireman, walking along ahead to pilot an engine through the yard to an interstate train, to which it was to be attached as a helper. Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. A workman, carrying a bag of bolts to be used by him in repairing a bridge regularly used in interstate transportation. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. A clerk, on his way through the railroad yard to meet and check up an interstate train and to mark its cars so that the switching crew would know what to do with them when breaking up the train. St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. A fireman who, having prepared his engine for an intrastate trip hauling a train containing interstate cars and being about to start out on his run, is walking across adjacent tracks on an errand consistent with his duties. North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. A brakeman on an intrastate train containing cars loaded with interstate freight, engaged in setting the brake on an intrastate car shifted onto a siding, thereby to enable the engine attached to the car to return to the train and proceed on its journey. New York Cent. & H. R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. A fireman on a switching engine, engaged in moving an intrastate car for the purpose of reaching and moving an interstate car. Louisville & N. R. Co. v....

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