Dunbar v. Cent. Vermont R. Co.

• Decision Date: 10 January 1907
• Citation: 65 A. 528,79 Vt. 474
• Court: Vermont Supreme Court
• Parties: DUNBAR v. CENTRAL VERMONT R. CO.

65 A. 528

79 Vt. 474

DUNBAR

v. CENTRAL VERMONT R. CO.

Supreme Court of Vermont. Franklin.

Jan. 10, 1907.

Exceptions from Franklin County Court; James M. Tyler, Judge.

Action by Henry A. Dunbar against the Central Vermont Railroad Company, for injuries received by plaintiff while conductor in charge of a train, in consequence of the derailment of the train. There was a verdict and judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and MILES, JJ.

Brigham & Start, Alfred A. Hall, and Senter & Senter, for plaintiff. C. N. Witters and H. Henry Powers, for defendant.

ROWELL, C. J. This is case to recover for personal injuries to the plaintiff by the derailment of a passenger train that he was conducting over the defendant's railroad.

The declaration alleged, and plaintiff's evidence tended to show, that the derailment was occasioned because the ties were so unsound and insufficient that the spikes could not hold the rails in place under the pressure of the train in going around the curve where the accident happened. The defendant moved for a verdict, for that there was no evidence tending to show any negligence on the part of the defendant that the plaintiff did not know, or, from his long experience on the road, ought to have known. This raised the question of on whom was the burden of proof as to the assumption of risk. There was nothing in the case to show whether the plaintiff knew the condition of the road or not, save what might be inferred from the fact that he had recently run his train over it several times without accident. But the court took no note of that fact as ground for an inference either way, but thought there was no evidence that the plaintiff knew of the defect, and therefore assumed that he did not know, and submitted the ease accordingly, thereby casting the burden upon the defendant of showing assumption of risk, and relieving the plaintiff from the burden of showing nonassumption. But the risk was not an ordinary risk, existing without the fault of the defendant, and therefore assumed by the plaintiff, but an extraordinary risk, as it existed by the fault of the defendant, and therefore was not assumed by the plaintiff, unless he knew and comprehended it, or it was so plainly observable that he will be taken to have known and comprehended it, then, in either case, he cannot recover. Dumas v. Stone, 65 Vt. 442, 25 Atl. 1097; Texas & Pacific Railway Co. v. Archibald, 170 U. S. 665, 673, 18 Sup. Ct. 777, 42 L. Ed. 1788; Choctaw, etc., R. R. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96. It will be noticed that the test is not whether the servant exercised care to discover the danger, for he is not bound to do that when he has a right to assume that it does not exist, but whether he knew and comprehended it, actually or presumably. Some of our cases in stating the test may involve the idea of care on the part of the servant, but generally when rightly understood, they state it with substantial accuracy, we think. Hence want of such knowledge and comprehension was an essential element of the plaintiff's case, and consequently the burden was on him to negative them, otherwise he would be taken to have assumed the risk, and could not recover. Such is the law of this state and of some of the other states, though some hold the other way. In Brainard v. Van Dyke, 71 Vt 359, 45 Atl. 758, the plaintiff was injured by the explosion of...