Dufur v. Boston & M. R. Co.

• Decision Date: 09 February 1903
• Citation: 53 A. 1068,75 Vt. 165
• Court: Vermont Supreme Court
• Parties: DUFUR v. BOSTON & M. R. CO.

53 A. 1068

75 Vt. 165

DUFUR

v. BOSTON & M. R. CO.

Supreme Court of Vermont. Orange.

Feb. 9, 1903.

Exceptions from Orange county court; Row ell, Judge.

Action by H. M. Dufur against the Boston & Maine Railroad Company. From a pro forma decree overruling plaintiff's demurrer to defendant's pleas, plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, STAFFORD, and HASELTON, JJ.

David S. Conant and R. M. Harvey, for plaintiff.

Young & Young, for defendant.

TYLER, J. The first count in the declaration alleges, in substance, that the defendant was a common carrier of passengers over its railroad; that it received the plaintiff, on payment of his fare, to carry him safely from Bradford to White River Junction; that it neglected its duty, by running the car in which he was a passenger upon a side track before the train reached the latter place, and allowing it to stand there for a long time; that the plaintiff had no opportunity to leave the car, but, by the defendant's direction, through its officers and agents, remained therein; that one Allen, with the defendant's knowledge and permission, then kept, and for a long time before had kept, a target for rifle practice, in such a situation, in respect to the car, that a bullet from his rifle might and would pass into the car; that the defendant knew that Allen was engaged in firing at said target directly towards the car; and that the plaintiff, without negligence on his part, was struck by a bullet from Allen's rifle, and injured. The second count only differs from the first in alleging that the defendant allowed and caused Allen to shoot his rifle towards and into the car, that the car was defective in its construction, and that, by reason thereof, when the plaintiff was hit by the bullet he was thrown down and injured. The defendant, in its fourth plea, sets up in defense to the action that soon after the plaintiff received his injuries, as alleged, he brought a suit against Allen to recover damages therefor, which suit was entered in Windsor county court; that Allen entered an appearance, and afterwards settled with the plaintiff, and paid him a large sum of money, which the plaintiff received and accepted in full settlement, satisfaction, and discharge of all causes of action in the declaration mentioned, and gave him a written release, under seal, of all such causes of action. This plea sets out the declaration in the Allen suit the first count of which is in trespass for a common assault; the second, for an assault by shooting at the plaintiff with a loaded rifle and injuring him; the third, in case, alleging negligent handling and shooting of the rifle, whereby the plaintiff was hit and Injured. It recites the release, and alleges that the causes of action in the two suits were identical. The fifth plea admits the placing of the car, with the plaintiff therein, upon the side track, and alleges a necessity for so doing, in that the main track was then temporarily occupied by other cars; denies all knowledge of Allen's intention to shoot on the occasion alleged; admits his shooting, but says it was without the defendant's consent or knowledge, and against its will; alleges that the bullet struck a knot in a post at which Allen fired his rifle, glanced to the car, and hit the plaintiff, and that its hitting the car and the plaintiff was accidental; that Allen did not anticipate, and had no reason to anticipate, an injury to any person. This plea also alleges a settlement and release. To these pleas the plaintiff demurred generally. The defendant relies upon the settlement and release as a bar to the action.

The plaintiff contends that the fourth plea is insufficient; that it appears upon its face that the causes of action in the two suits were not the same; that the allegation of identity in the fourth plea is inconsistent with the facts set out in the declaration in the Allen suit, in which it was alleged that Allen willfully and negligently shot and injured the plaintiff, but that it contained no allegation that the defendant was in fault in connection with Allen, and jointly liable with him; that, upon the declaration and pleas in this case, Allen was not a...