Elizabeth Goodwin, Admx. v. George A. Gaston, Receivers of Central Vermont Ry. Co

• Decision Date: 05 May 1931
• Citation: 154 A. 772,103 Vt. 357
• Parties: ELIZABETH GOODWIN, ADMX. v. GEORGE A. GASTON ET AL., RECEIVERS OF CENTRAL VERMONT RY. CO
• Court: Vermont Supreme Court

154 A. 772

103 Vt. 357

ELIZABETH GOODWIN, ADMX. v. GEORGE A. GASTON ET AL., RECEIVERS OF CENTRAL VERMONT RY. CO

Supreme Court of Vermont

May 5, 1931

November Term, 1930.

Railroads---Duty of Person Approaching Railroad Grade Crossing---Presumption---Contributory Negligence---Evidence---Opinion Based on Conjecture---Insufficiency of Evidence To Support Verdict---Assumption of Risk---Presumption in Relation to Assumption of Risk---Rule as to Direction of Verdict---Office of Motion for Reargument---Brief on Reargument---Grounds of Motion Too General for Consideration---Defect in Motion May Not Be Aided by Brief---Sufficiency of Evidence To Justify Finding as to Speed---Harmless Error---Insufficient Briefing---Reargument---Matters Not Relied upon at Original Hearing---Construction of Record by Supreme Court---Motion for Directed Verdict Construed---Motion to Remand.

1. One approaching railroad crossing at grade is required to look and listen for approaching trains, and, if necessary to enable him to listen effectively, to stop to listen.

2. One approaching railroad crossing at grade must continue to look and listen until last moment when discovery of train will avail for his protection.

3. One approaching railroad crossing at grade is chargeable with such knowledge of approach of train as he may obtain by such vigilant use of his senses as prudent and careful man would make in circumstances.

4. If person approaching railroad crossing at grade by vigilant use of his sight and hearing can discover and avoid danger, and omits such diligence, he is guilty of contributory negligence.

5. In action under G. L. 3314, 3315, to recover for death of plaintiff's intestate who was struck by a train at grade crossing, burden of showing freedom from contributory negligence is on plaintiff.

6. If by such use of his senses as prudent man would make, person approaching grade crossing cannot discover peril in time to avoid it, he is not guilty of contributory negligence.

7. Negligence, to be contributory in legal sense, must be part of proximate cause of accident.

8. Opinion of another automobile operator, not present at time plaintiff's intestate was killed when truck which decedent was driving was struck by train at grade crossing although witness had driven over same route as decedent earlier in winter when conditions as to ice were similar that owing to icy condition of road decedent could not have stopped after driving from private yard into roadway, in time to avoid accident, held too conjectural to go to jury witness never having tried to stop in such situation and been unable to do so, nor known of anyone else who had tried and failed.

9. Evidence which merely makes it possible for fact in issue to be as alleged, or which raises mere conjecture, surmise, or suspicion, is insufficient foundation for verdict.

10. While doctrine of assumption of risk in its primary sense applies only where there is contractual relationship between parties, in its broader sense it applies where no contractual relationship exists, and is then confined to cases where injured person knows and appreciates danger and voluntarily puts himself in way thereof.

11. Contrary not appearing, it will be presumed that driver of truck struck by train at railroad grade crossing was of average intelligence and mental capacity, and therefore that he had common knowledge and appreciation of difficulty of stopping heavily loaded truck on slippery descending grade.

12. Driver of heavily loaded truck who was familiar with sharp descending grade of road to railroad track and knew of then icy condition of road, who started on such road toward railroad grade crossing, held to have assumed risk of danger of inability to stop on discovering approach of train.

13. Where evidence in case was such that it would have been duty of trial court, in exercise of wise judicial discretion, to set aside verdict for plaintiff upon motion, and refusal to do so would have been abuse of discretion, defendant's motion for directed verdict should have been granted.

14. Office of motion for reargument is to point out to Court wherein it is claimed that it has misapprehended or overlooked some point which was presented in brief upon argument of case; and new questions, or those which have been argued, and decided upon due consideration of pertinent law and facts appearing and pointed out in record, are not for consideration.

15. Leave to file motion for reargument is not equivalent to leave to reargue case.

16. Where brief is filed on motion for reargument, all that may properly appear therein is an enumeration of those parts of brief on argument which are relied upon in support of motion.

17. Ground of motion for reargument which does not point out specifically evidence which it is claimed Supreme Court has overlooked is too general for consideration, and shortage in motion cannot be aided by what appears in brief.

18. On plaintiff's motion for reargument, as against computation from distance actually traveled by train in three minutes, showing its rate of speed to be almost exactly 55 miles per hour, opinion of witness who had been in highway about 50 feet from train when it passed, that it was then going "about a mile a minute," and his later statement on direct examination that its speed was between 55 and 60 miles an hour, held not to justify finding contrary to original opinion of Court that by fair construction, of record speed was approximately 55 miles an hour.

19. Mistake, if any, of Court in making statement for purposes of argument only, that, assuming plaintiff's claim as to speed of truck to be correct, truck could not have been stopped at certain point so as to avoid accident, held immaterial on motion for reargument, where there was no evidential basis for plaintiff's claim as to speed of truck.

20. Where brief on motion for reargument merely repeated statement in motion that Supreme Court had overlooked fact that jury viewed premises, but did not point out where matter was mentioned in brief on argument, matter is not for consideration.

21. Matter not relied upon in brief on argument of case in Supreme Court cannot be availed of when raised in brief on motion for reargument.

22. There having been occasion and ample opportunity to raise point at hearing which was not availed of, it cannot be made basis of reargument.

23. Supreme Court, if possible, must construe record to support ruling below, but construction must be reasonable.

24. Motion for directed verdict on ground that "on all the evidence in the case," viewed most favorably to plaintiff, his intestate was guilty of contributory negligence, held not to mean that there was no evidence whatever tending to decedent's freedom from contributory negligence, but that there was no evidence fairly and reasonably tending to show freedom from contributory negligence.

25. Evidence available at trial of cause concerning issues involved, but not used, held not to justify granting of plaintiff's motion for remand after adverse decision in Supreme Court.

ACTION OF TORT under G. L. 3314, 3315, to recover damages for wrongful death of plaintiff's intestate, resulting from collision at grade crossing between defendants' train and truck then being driven by plaintiff's intestate. Plea, general denial. Trial by jury at the March Term, 1930, Washington County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Judgment reversed, and judgment for the defendants to recover their costs.

J. W. Redmond and Horace H. Powers for the defendant.

Theriault & Hunt for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

MOULTON

This is an action under G. L. 3314 and 3315 to recover for the death of the plaintiff's intestate. The verdict was for the plaintiff, and the defendants excepted.

The accident took place upon a grade crossing of the defendant's railway. The negligence alleged was the failure to blow the whistle or ring the bell and the operation of the train at an excessive rate of speed.

At the close of all the evidence the defendants moved for a directed verdict, the grounds being that the decedent was guilty of contributory negligence and that he assumed the risk. The motion was denied and the defendants excepted.

Taken most favorably for the plaintiff, the evidence tended to show the following facts: The decedent was 41 years of age. He was engaged in the business of peddling meat and provisions, using for this purpose an automobile truck with a meat box built upon it. Among his customers was a family named Farr, who lived in a house situated just west of the main line of the defendant's railway. The track runs parallel with the highway and between it and the house, and a private road extends from the highway 120 feet westward to the track and across it to the Farr dooryard. This crossing is at grade and is known as Farr's crossing. It serves only the Farr house and premises. It is maintained over the railroad track whether public or private. After crossing the track, the road is approximately level for 10 feet, after which it ascends for 40 feet at an average grade of 11-3/4 per cent. There is a slight curve near the track, and at the time of the accident the road was narrowed to some extent where it passed over a culvert at the foot of the grade. On the day of the accicdent the road was icy and covered with a light fall of snow. The weather was cold and clear.

The decedent had driven his truck westward from the highway over the private road and railroad crossing into the Farr dooryard. After selling some meat to Mrs. Farr, he turned his truck around so that it faced eastward, and...