Charles C. Webster v. Canadian Pacific Railway Co.

• Decision Date: 06 October 1931
• Citation: 156 A. 524,103 Vt. 460
• Parties: CHARLES C. WEBSTER v. CANADIAN PACIFIC RAILWAY COMPANY
• Court: Vermont Supreme Court

156 A. 524

103 Vt. 460

CHARLES C. WEBSTER v. CANADIAN PACIFIC RAILWAY COMPANY

Supreme Court of Vermont

October 6, 1931

January Term, 1931.

Trial---Motion for Directed Verdict---Railroads---Evidence That Signals Were Not Heard as Affirmative Evidence---Jury Question---Insufficiency of Evidence To Show as Undis- putable "Physical Fact" That Signals Were Given---Right of Jury To Consider Evidence Even Though Unreasonable, Inconsistent, or Contradictory---Credibility of Witnesses---Negligence of Driver of Automobile Not Imputable to Guest---Standard of Duty of Driver of Automobile and Guest---Conduct To Fulfill Such Duty---Vigilance To Be Exercised by Guest in Automobile as Dependent upon Care and Attentiveness of Driver---Assumptions Warranted by Guest in Automobile from Maintenance of Railroad Crossing Bell---Absence of Usual Signal at Crossing as Bearing upon Question of Contributory Negligence---Sufficiency of Evidence To Make Questions of Contributory Negligence and Assumption of Risk for Jury---Cross-examination of Witness on Immaterial Matter---Scope of Cross-examination as Discretionary with Trial Court---General Objection---Harmless Error---Trial---Instructions of Court---Not error to Fail to Instruct on Matter Not in Issue---Verdict of Jury as Curing Possible Error.

1. Motion by defendant for directed verdict on ground that evidence fails to show any negligence on its part that was proximate cause of accident will not be entertained, where there is substantial evidence to support plaintiff's claim.

2. In ACTION OF TORT against railroad company for negligence, held that evidence of persons in position to hear statutory signals if they had been given, that they did not hear them while not all of same probative value, was affirmative in character.

3. In such action, evidence that statutory signals had not been heard by persons in position to hear if they had been given held to make question of defendant's negligence in failing to give signals for jury.

4. In such action, fact that defendant produced more witnesses who testified that statutory signals were given than plaintiff called to show that they were not was not determinative of question.

5. In such action, testimony of witnesses in position to have heard engine bell ring if it was rung, that it did not ring, is not contradicted by undisputable "physical fact," so as to be of no probative value, because ten witnesses testified they heard it.

6. Testimony which is not impossible, though it may be unreasonable, inconsistent, or contradictory, is for jury's consideration.

7. Ordinarily, credibility of witnesses is for jury not for court.

8. Negligence of driver of automobile is not imputable to his guest riding therein.

9. While standard of duty is same as to both driver of automobile and guest therein, in that each must exercise care of prudent person in like circumstances, conduct required to fulfill such duty is ordinarily different.

10. Guest riding in automobile with apparently careful, attentive driver need not exercise same vigilance as if he were riding with heedless, reckless driver.

11. Where railroad had maintained crossing bell for at least two years prior to accident, guest in automobile who knew of such bell and had heard it ring on previous occasions had right to assume until his senses advised him to contrary, that he would not encounter danger at crossing when bell was not ringing.

12. While one about to enter upon grade crossing is not relieved from exercising due care by fact that known signal does not indicate train is approaching, he is not required to exercise same vigilance that would be required if signal was given and fact that signal was not given should be taken into consideration in determining whether such person exercised due care in circumstances.

13. Under evidence in case, question whether guest in automobile injured in accident at railroad grade crossing was guilty of contributory negligence, held for jury.

14. Under evidence in case, question whether guest in automobile assumed risk of danger occasioning injury in accident at railroad grade crossing, held for jury.

15. In action of tort for negligence against railroad by guest in automobile injured in railroad grade crossing accident, exclusion on cross-examination of plaintiff's photographer of question of whether he would have placed camera in position he did had he been free to act on his own judgment, held without error, since it appeared that in taking pictures he acted on orders of others, and had no choice in selecting places from which pictures were taken.

16. Scope of cross-examination rests largely in discretion of trial court, and its ruling thereon is not revisable in absence of abuse.

17. Objection on grounds of immateriality, to question whether witness, who had testified that he did not hear signals at time of accident, had heard them given on previous occasions when approaching grade crossing, held too general to save objections that question did not specify signals to which examiner referred, and that it did not appear conditions on other occasions were same as at time of accident.

18. Admission of testimony that witness on previous occasions when approaching grade crossing where accident occurred had heard signals, held harmless, where like evidence from other witnesses of equal reliability was subsequently admitted without objection.

19. Failure of court to charge that if signals were given, jury could not find any negligence of defendant because of any speed of engine shown by evidence, held properly refused, where question of speed of engine was not submitted to jury as distinct ground of negligence and liability.

20. Failure of court to charge that, if signals were given, no negligence could be found by jury on part of defendant because of any speed of its engine shown by evidence, if error, was harmless, where question of speed not having been submitted as distinct ground of negligence jury, by its verdict, must have found that railroad failed to give one or both of statutory signals, there being no other basis for their verdict.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the June Term, 1930, Caledonia County, Sherman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Walter H. Cleary and John W. Redmond for the defendant.

Shields & Conant for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, ^[1] WILLCOX, and THOMPSON, JJ.

OPINION

SLACK

The plaintiff was riding in an automobile owned and driven by one McNair when it was struck by one of the defendant's engines on a grade crossing in the village of East Barnet, and he received the injuries for which he is seeking to recover. He had a verdict and judgment below, and the case is here on defendant's exceptions.

The negligence charged is failure to give the statutory signals, failure to sound the bell which defendant had installed at the crossing, and excessive speed of the engine at the crossing. At the close of all the evidence defendant moved for a directed verdict on the grounds, in effect, that the evidence failed to show any negligence on its part that was the proximate cause of the accident, that it failed to show freedom from contributory negligence on the part of the plaintiff, and that it showed that he assumed the risk of the danger that resulted in his injury.

The railroad track and the highway over which plaintiff was traveling cross at right angles. The former runs north and south; the latter east and west. The highway joins the main highway leading from St. Johnsbury to Wells River 466 feet west of the crossing. The railroad runs in nearly a straight course for more than 3,700 feet north from the crossing, and, but for the obstructions presently to be noticed, could be seen this distance in the daytime from all points on the highway between the St. Johnsbury-Wells River road and the crossing. There are five buildings on the northerly side of the highway leading to the crossing the frontage of which on the highway and their relative location is substantially as follows: 180 feet east of the St. Johnsbury-Wells River road is a house with a barn connected, the combined frontage being 60 feet; 37 feet east of these is what has been referred to as the Army and Navy store with a frontage of 16 feet; 44 feet east of this is a store-house with a frontage of 30 feet; 21 feet east of this is a restaurant with a frontage of 30 feet; and fifteen feet east of this is the railroad station which is 24 feet wide The east side of the station is 12 feet from the west rail of the defendant's track and the south end of it is 10 feet from the traveled part of the highway. Because of the angle at which they face the highway, and their length, some of these buildings, especially the Army and Navy store and storehouse, obstruct the view of the track to the north more than their width indicates. There was evidence of other obstructions of this view, namely, lumber piles, an automobile, and an auto truck. Another building referred to by some of the witnesses is Roy's office, which is located on the south side of the highway, approximately 240 feet west of the crossing. The accident happened between 6.40 and 7.00 o'clock in the morning of December 13, 1929. The evidence tended to show that in that locality it was then frosty, foggy or hazy, so that the view of the engine was dim or indistinct, although the headlight was burning, and that it was run at a high rate of speed.

The question of defendant's negligence in failing to sound the crossing bell was withdrawn from the jury because there was no evidence to show that it knew or ought to have known that the...