Dent v. Falls

• Decision Date: 09 February 1922
• Parties: R. WARD DENT, ADMR. v. BELLOWS FALLS AND SAXTONS RIVER STREET RAILWAY COMPANY
• Court: Vermont Supreme Court

116 A. 83

95 Vt. 523

R. WARD DENT, ADMR. v. BELLOWS FALLS AND SAXTONS RIVER STREET RAILWAY COMPANY

Supreme Court of Vermont

February 9, 1922

May Term, 1921.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1920, Windham County, Moulton J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

George A. Weston and E. W. Gibson for the defendant.

W A. Graham and Harvey, Maurice & Fitts for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

Plaintiff's intestate, Fred M. Fairbanks, late of Springfield, Vermont, was killed in the nighttime of August 1, 1918, by being run over by an electric car on a bridge situated on the defendant's road between Bellows Falls and Saxtons River. This action is brought to recover damages for the benefit of the next of kin. The trial was by jury, with verdict and judgment for the plaintiff. The defendant saved various exceptions, on which the case is brought here for review.

At the close of the evidence the defendant moved for a directed verdict on the grounds: (1) That the undisputed and unconflicting evidence shows contributory negligence on the part of the intestate; and (2) that there is no evidence tending to show negligence on the part of the defendant. The motion being overruled, an exception was noted for the defendant. There was also a motion to set aside the verdict, one ground of which was that "from all the evidence it appears that the decedent was guilty of contributory negligence." The defendant briefs the question of contributory negligence generally without special reference to either motion. The plaintiff contends that the exception taken to overruling the motion for a directed verdict is not presented by the bill of exceptions, and that the exception to overruling the motion to set the verdict aside is not briefed, and so is waived. Both motions raised the same question, so far as they related to negligence on the part of the intestate. It cannot be said that this exception or that is waived by failure to brief, as the discussion applies as well to the one as to the other. However, in view of the possible effect upon the final disposition of the case here, it will be necessary to decide whether the question of error in denying the motion for a directed verdict is saved to the defendant.

The case was passed to this Court on a skeleton bill of exceptions, which specifies generally certain exceptions to the admission and exclusion of evidence, and to the charge of the court and its refusal to charge, "as by the transcript fully appears." The transcript is not in terms made the bill of exceptions; but the transcript of the testimony and charge of the court is referred to and made part of the bill, and it is ordered that it be controlling. No mention of the motion for a directed verdict is made in the bill of exceptions, and the question is whether the reference to the transcript is so restricted that it cannot be treated as made a part of the bill beyond what is therein specified. While under the present practice exceptions may be brought onto the record by proper reference to the transcript, when reference thereto is made for a limited purpose, only the exceptions set forth in the bill are for consideration. Johnson & Co. v. C. V. Ry. Co., 84 Vt. 486, 500, 79 A. 1095; Roach v. Caldbeck, 64 Vt. 593, 24 A. 989; Fraser v. Nerney, 89 Vt. 257, 261, 95 A. 501; Lynch's Admr. v. C. V. Ry. Co., 89 Vt. 363, 380, 95 A. 683. Where there is a general controlling reference to the transcript not intended as a reference for exceptions not noted in the bill, an exception appearing in the transcript and not in the bill is not for consideration. Bianchi Granite Co. v. Terre Haute Mon. Co., 91 Vt. 177, 99 A. 875. See also The Cutler Co. v. Barber, 93 Vt. 468, 472, 108 A. 400, where other cases are cited. As uncertainty in a bill of exceptions must be solved against the excepting party ( State v. Marino, 91 Vt. 237, 99 A. 882; Reynolds v. Bean, 91 Vt. 247, 99 A. 1013), it should be held that the exception to the overruling of defendant's motion for a directed verdict is not on the record. But it does not follow that the question of contributory negligence is not for consideration. The exception taken when the motion to set aside the verdict was overruled, which is on the record before us, saves the question. German v. Bennington & Rutland R. Co., 71 Vt. 70, 42 A. 972.

The evidence, in the view most favorable to the plaintiff so far as it was conflicting, tended to show the following facts: Plaintiff's intestate was forty-one years of age, in good health, and his sight and hearing were normal. The bridge where the accident occurred was on the defendant's private right of way, a short distance westerly toward Saxtons River from Barber Park. This park is an amusement resort, which the defendant had operated for several years, and to which the public was invited. It was situated on the line of defendant's railroad, and was also accessible by a public highway. On the night of the accident a dance was being held at the park. The intestate had carried a party from Springfield to the park in his automobile, going by the highway, and had returned to Bellows Falls for another party destined for the dance. Instead of driving by the highway to the park on the return trip from Bellows Falls, he parked his automobile in the yard of a house some distance westerly of the bridge, and with those who accompanied him set out for the park on foot, leaving the highway and following the railroad track toward the bridge. It was then about half past nine, and the night was dark and cloudy, so much so that it was difficult walking the track, especially after the bridge was reached. The bridge was 165 feet long, constructed of iron, with the usual timber and cross-ties of such a railroad bridge. For some years previously boards or planking had been maintained between the rails across the bridge, put there as defendant's evidence tended to show for the convenience of its employees in crossing. These boards were originally nailed to the ties, but at the time of the accident they had become disarranged and broken on the easterly half of the bridge. The party proceeded along the track in couples a short distance apart. The intestate and a Mrs. Cook, whom he was assisting, were the last to go upon the bridge. The latter had on high-heeled shoes, which increased her difficulty in crossing. Just as the rest of the party reached the east end of the bridge, and when Mrs. Cook and the intestate were about three-fourths of the way across, the car in question was discovered by those at the end of the bridge as it came in sight around a curve about 835 feet away. They immediately made an outcry, intended to warn those on the bridge and to attract the attention of the motorman. The intestate and Mrs. Cook redoubled their efforts to get off the bridge, but the car came on at a rapid rate of speed, which was increased as it approached, and struck them while still on the bridge at a point about eight feet from the easterly end. Mrs. Cook was thrown clear of the track, but the intestate went under the car and was instantly killed.

The car in question was of the ordinary open type, with running boards on either side. It was 45 feet long over all, and was lighted by two rows of 16 C. P. electric lights on the inside of the roof. It had no headlight, though it was equipped so that such a light could have been installed. On the run in question it was scheduled to leave Saxtons River, two miles westerly of Barber Park, at 9.30, arriving at the park at 9.40, and was running on scheduled time. As lighted, the motorman could see ahead in the dark only a short distance--some 10 or 15 feet. The motorman was watching the track ahead as the car crossed the bridge, but did not discover the persons on the track until about three-fourths the way across. On discovering them he did everything possible to stop the car. He applied the brakes and reversed the power, which brought the car to a stand about 74 feet from the point where the intestate was struck.

The defendant insists that the intestate was a trespasser, and bases its arguments on the question of its duty to him upon that assumption. The plaintiff does not seriously contend that such was not the fact, but claims that certain evidence respecting the use of the track and bridge at that point takes the case out of the rule relied upon by the defendant respecting the duty of a railroad company to trespassers on its track. The evidence referred to tended to show that visitors frequently crossed the bridge in going to or from the park, and that the officials and employees of the company knew, or ought to have known, of this practice. The view we take of this evidence, which we shall have occasion to refer to more in detail later, renders it unnecessary to decide whether the intestate had any more favorable standing than that of a trespasser, and we assume, without deciding that his position was that of a trespasser. The defendant claims that the intestate was, in the circumstances, guilty of contributory negligence as a matter of law in being upon the bridge, while the plaintiff contends that the question of contributory negligence was for the jury. However, as we shall see the ultimate and controlling question is such that it may be assumed that the intestate was negligent in undertaking to cross the bridge. With this assumption the case is narrowed down to the question whether on the evidence the intestate's negligence must be deemed to have been the proximate cause of his death, or, in other words, whether the doctrine of the "last clear...