Davis' Adm'x v. Rutland R. Co.

• Decision Date: 10 January 1909
• Citation: 82 Vt. 24,71 A. 724
• Parties: DAVIS' ADM'X v. RUTLAND R. CO.
• Court: Vermont Supreme Court

71 A. 724

82 Vt. 24

DAVIS' ADM'X

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

Jan. 10, 1909.

Exceptions from Rutland County Court; Wm. H. Taylor, Judge.

Death action by Silas H. Davis' administratrix against the Rutland Railroad Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Butler & Moloney, for plaintiff.

M. C. Webber and P. M. Meldon, for defendant.

ROWELL, C. J. This is case for negligence in causing the death of the intestate by means of an escaped freight car colliding with an engine that was being run by the intestate as defendant's servant, hauling a passenger train from Rutland to Bellows Falls.

The original declaration, which contained but one count, did not allege that the intestate did not know of the different breaches of duty therein alleged, and the plaintiff was allowed to file an amended count supplying that omission. It is objected that this was error, for that the original declaration showed no cause of action, and to amend by showing one was to declare upon a new cause of action, which is not allowable. But there was something to amend by, and if the court was in doubt, on inspection of the original declaration and the amended count, whether the latter declared upon the same cause of action as the former or not, it could inquire dehors them, to ascertain how the fact was; and, if necessary in order to support its action, we should presume it did inquire and found that it declared upon the same cause. Lycoming Fire Ins. Co. v. Billings, 61 Vt. 310, 17 Atl. 715. And, besides, the test is whether the proposed amendment is a different matter, or the same matter more fully or differently laid. If the latter, you can amend; if the former, you cannot. Daley v. Gates, 65 Vt. 591, 27 Atl. 193. Now here it is obvious on inspection that the amended count does not declare on a different matter, but on the same matter more fully and accurately laid, and so no error.

The defendant moved for a verdict on the amended count, for that there was no evidence tending to show that the intestate did not know of the different broaches of duty therein assigned. The motion was overruled. Six breaches were assigned, but only four submitted to the jury. These were: (1) Not properly equipping said car, in that the brakes were defective, insufficient, and in a negligent and dangerous condition; (2) allowing the derailing device to be insufficient and misplaced; (3) not establishing rules and regulations for the government of employés in operating said device and having it in proper condition; and (4) not providing means for derailing cars that had escaped onto the main line, and for preventing them from doing damage. But the court could not grant the motion, for that would have deprived the plaintiff of the opportunity of going to the jury on the claim that the defendant was negligent in not properly equipping the car, in that the brakes were defective, insufficient, and in a negligent and dangerous condition; whereas, the defendant practically concedes that the intestate neither knew, nor can be charged with knowing, the condition of the brakes in this respect, for it says in its brief that the uncontradicted testimony was that the intestate knew, or should have known, of all the risks, "except the alleged defective brake." And this exception is justly made, for the car was a foreign car, and came into the defendant's yard at Rutland only eight days before the accident, and was taken to East Wallingford three days later, and placed and loaded on a spur track, where it remained till the day of the accident, so that it is easy to say that the intestate knew nothing about the car nor the condition of its brakes.

The defendant invokes under this motion the doctrine that the servant assumes the usual and ordinary risks incident to his employment, and applies it to the failure of the brake to work and hold the car because the chain suddenly kinked, as its testimony tended to show, a thing that sometimes happens; but the motion did not raise that question, for such risks are assumed whether the servant knows of them or not; whereas, the only ground of the motion is absence of testimony to show want of knowledge on the part of the intestate.

The defendant submitted 10 requests to charge, covering practically the whole law of the case, and excepted to the refusal of the court to charge as requested, and to the charge as given on the subject-matter of the requests. This exception is too general and indefinite to be available.

The...