Le Febvre v. Cent. Vermontry. Co.

• Decision Date: 15 January 1924
• Citation: 123 A. 211
• Parties: LE FEBVRE v. CENTRAL VERMONTRY. CO.
• Court: Vermont Supreme Court

123 A. 211

LE FEBVRE

v. CENTRAL VERMONTRY. CO.

Supreme Court of Vermont. Washington.

Jan. 15, 1924.

Exceptions from Washington County Court; Prank L. Fish, Judge.

Action by David P. Le Febvre, administrator, against the Central Vermont Railway Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Theriault & Hunt, of Montpelier, for plaintiff.

John W. Redmond, of Newport, and W. R. McFeeters, of St. Albans, for defendant.

POWERS, J. Late in the afternoon of Saturday, June 17, 1922, an automobile, owned and driven by George Bardis, of Northfield, was in collision with the defendant's train at the grade crossing at Riverton station, and the plaintiff's intestate, who was riding in the automobile as Bardis' guest, received injuries that resulted in her death. This action for damages followed. Riverton is the first station south of Montpelier Junction, and is about six miles therefrom. There' is a heavy grade going south on the defend ant's road between these points. The train involved in the collision was the regular south-bound milk train, running on schedule, and consisted of 16 loaded milk cars and a coach, drawn by an ordinary freight, engine, No. 414. This train, which was not scheduled to stop at Riverton, left Montpelier Junction at 4:42 p. m., under an order to meet a northbound passenger train at Roxbury, where it should arrive at 5:40 p. m. At the time of the collision it was running very fast.

The main line at Riverton runs substantially north and south, and the highway crosses it at a grade at substantially a right angle. The station building is located east of the track and south of the highway. From the north end of the platform of this station a raised cinder structure extends northerly along the track and ends in a ramp about 9 feet long, which runs down to and blends into the traveled track of the highway. A similar cinder structure extends southerly from the station platform. The one at the north end of the platform is made by placing two rows of timbers end to end along parallel to the track, at a proper distance from each other, and filling with cinders the space between to the level of the platform. It is about 8 feet wide. On the track side it is 1 foot above the ties and on the east side is 2 1/2 feet above the ground. Including the ramp it extends into the highway about 25 feet. Its obvious purpose is not only to furnish an approach to the station, but also to afford an extension of the station platform for the convenience of persons entering or leaving the defendant's cars and other railroad purposes.

East of its main line, the defendant maintains a spur siding, which branches off at a point about 30 rods north of the station and runs southerly, at varying distances from the main line, to and a little beyond the station, crossing the highway at a point about 30 feet from the main line, and passing east of the station.

The highway is 4 rods wide. By means of a covered bridge it crosses Dog river about 30 rods east of the main line. As a northbound traveler comes out of this bridge, he finds at his right, on the river bank, a power house, just west of which is Davis Bros.' long granite shed, extending westerly to a point some 30 feet from the siding. At the west end of this shed and on a north and south line therewith an office building extends southerly into the highway. These buildings entirely cut off this traveler's view of the main line to the north until he reaches a point opposite the southwest corner of this office building, about 65 feet from the main track. Nor does he then get an unobstructed view of the track to the north, which is practically straight for a long distance. At the west end of the Davis shed there is a trestle, made of heavy timbers, extending westerly to and over the siding and nearly to the main line. This trestle carries the crane that serves the shed. Then, north of the Davis shed, and about 50 feet from it, stands the granite shed of Provost & Son, which extends further west than the Davis shed into the defendant's right of way, and ends at the siding. This shed also has a trestle to carry its crane, the same being built from its west end out over the siding like the one above referred to. These trestles, with their heavy uprights and braces, materially obscure the view of the main line track from the highway to the north. A large telephone pole west of the siding nearly opposite the Provost shed adds more or less to this obscurity. The plan and photographs show that it would be difficult to so arrange the structures above referred to as to make it more difficult for a north-bound traveler to discover a train approaching from the north. Not only this, but at the time of this fatality, a box car was standing on the siding at the Provost shed, a flat car loaded with granite stood on the siding at the Davis shed; and south of that ear, but north of the highway, stood a gondola coal car, 40 feet long and 8 or 9 feet high.

It is thus seen, without the aid of testimony, that a situation very hazardous at best was made much more so by the presence and arrangement of these cars. It would be a fair inference from the evidence that the view to the north was so completely cut off that one traveling north on the highway could not see a train coming south until he had cleared the coal car by several feet, and at a time when the train had nearly or quite reached the Provost shed. As already stated, the train in question was running very fast. In the quaint phrase of the craft, the engineer testified that he was "just patting her on the back"—meaning that he was trying to get the most possible out of his machine. The statutory signal by bell or whistle was not given.

The automobile in question contained seven persons: On the front seat sat Bardis, Miss Wilfore, and Mrs. Blodgett. On the rear seat were Mrs. Bardis, Mrs. Le Febvre (the decedent), holding her little boy in her lap, and her daughter, Glenna. These persons are here named in the order from left to right as they sat in the car. Bardis drove through the bridge and along toward the crossing in low gear, at a speed of about 9 miles an hour. Just after he passed over the siding, he discovered the approaching train. He turned his car sharply to the left to avoid a collision. He ran the car up the ramp of the cinder platform, but the right rear wheel dropped off the timber, and the collision followed almost instantly.

It is not to be taken, of course, that the foregoing facts were undisputed. There was a conflict of evidence as to many if not all of the most vital ones; but, giving the plaintiff the benefit of a favorable construction, the facts above recorded are within the tendency of the evidence.

At the close of the evidence, the defendant moved for a directed verdict. This motion was overruled, and the defendant excepted.

We need take but little time with the claim that the evidence does not tend to show that the defendant was negligent. We are not concerned with the preponderance of the evidence. It is enough for our present purpose that the record discloses evidence fairly and reasonably tending to show that this train approached this busy crossing, made extremely hazardous by the defendant's fault, without the statutory signal or other warning, at a speed altogether too great to be consistent with the defendant's duty toward the traveling public. Indeed, the lack of the statutory signal alone made a prima facie case of negligence. Wakefield v. Connecticut & Pass. Rivers R. Co., 37 Vt. 330, 86 Am. Dec. 711; Howe v. Central Vt. Ry. Co., 91 Vt. 485, 101 Atl. 45.

In disposing of this question, we assume that the whistle was blown at the whistling post as the defendant's evidence tends to show, of which we shall speak again. We also disregard all question with reference to the watchfulness of the engineer and fireman. It is quite apparent that, with the speed of the train what the plaintiff's evidence tended to show it was, the enginemen, however watchful they might have been, could have done nothing to avert the collision after the automobile came into their range of vision. This is made so plain by the record that this question should not have been submitted to the jury.

We have nothing now to do with the question of Bardis' negligence; for, if shown, it could not be imputed to his guest, the decedent Wentworth v. Waterbury. 90 Vt. 60, 96 Atl. 334; Lee v. Donnelly, 95 Vt. 121, 113 Atl. 542. No reference, therefore, will be made to his conduct, except so far as may be necessary to a proper discussion of other questions involved. But the plaintiff had the burden of showing that the decedent herself was in the exercise of due care at the time of the accident. He was called upon to give evidence, direct or circumstantial, that would warrant the inference that she was acting in the respect under consideration as a prudent person, situated exactly as she was, would act—nothing more and nothing less. So, giving the plaintiff the advantage of a favorable construction of the evidence, it comes to this: What, by way of caution, does the law require of one who approaches a blind and dangerous crossing, while sitting as a guest between two other persons on the back seat of a slowly moving automobile, with its top up, and driven by a competent person, over whom he has no control, and while holding in his lap a 6 year old child, and is injured by a train which covers the crossing at excessive speed, without giving the statutory or other warning of its approach? How is one so situated affected by the prudent man rule? This question is new to this court. While the rule itself does not change, the conduct necessary to fulfill its requirements varies as the circumstances do. Although the failure of the defendant to sound the whistle or ring the bell as the statute requires did not excuse the decedent from the...