French v. Grand Trunk Ry. Co.

• Decision Date: 02 August 1904
• Citation: 76 Vt. 441,58 A. 722
• Parties: FRENCH v. GRAND TRUNK RY. CO.
• Court: Vermont Supreme Court

58 A. 722

76 Vt. 441

FRENCH

v. GRAND TRUNK RY. CO.

Supreme Court of Vermont Essex.

Aug. 2, 1904.

Exceptions from Essex County Court; Munson, Judge.

Action by Alvin J. French against the Grand Trunk Railway Company. Judgment for plaintiff. Defendant brings exceptions. Reversed.

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

J. W. Redmond and E. A. Cook, for plaintiff.

C. A. Hight and L. L. Hight, for defendant.

START, J. The action is for the recovery of damages alleged to have accrued to the plaintiff by reason of being struck by an engine while attempting to cross the defendant's railroad track. The defendant requested the court to instruct the jury "that, on all the evidence in the case, the plaintiff is not entitled to recover." This is, in effect, a motion for a verdict, and sufficiently states the ground of the motion; and, by excepting to the refusal Of the court to comply with the request, the defendant has reserved for the consideration of this court the question of whether, upon the most favorable view for the plaintiff of all the evidence, he was entitled to recover.

The plaintiff gave evidence tending to show that he walked from the public crossing through the railroad yard of the defendant, along the side of a line of box cars, some 230 feet, and then passed the end of the line of box cars, and that he looked to the right and left went right along, and attempted to cross the defendant's main line, and, in so doing, was struck by the defendant's express train coming from the west; that, as he passed the end of the box cars, he could see toward the west a distance of the length of two or three cars; and that he knew it was about time for the express to arrive, and was dangerous to be on the track. The actual measurements of the surveyor, which were disputed only by estimates, from the position of a man stepping over the north rail, show that a person could see 188 feet along the north rail, and 223 feet along the south rail. The train made a good deal of noise, and, upon the shout of warning from bystanders, the plaintiff did not quicken his pace in any way, but looked up, not in the direction of the approaching train, but in the direction of those who called to him; and at the time he was struck he was stepping over the last rail—had one foot over.

Upon these facts, the plaintiff was not entitled to recover. There is no view of the evidence that relieves him from the charge of contributory negligence. He was in possession of all his mental and physical faculties. He knew the express train was due. He was struck as he was stepping over the last rail. One step would have brought him to a place of safety. Assuming that he could see along the track over which the train was approaching for a distance of only the length of two or three cars, as testified by him, if he had had a regard for his own safety and looked and listened as he was crossing the track, he would have seen or heard the train, quickened his pace, and reached a place of safety. If he had looked or listened before stepping upon the track, he would have heard or seen the train; and, if mindful of his safety, he would have stopped and avoided the collision. If he had quickened his pace when his attention was called to the approaching train, he could have saved himself. He was unencumbered, and capable of easily hastening or checking his movements; and, if he had looked when he was in the middle of the track, he could have seen the engine in season to have stepped clear of danger. He could have seen the danger and avoided it at a time when it was too late for the defendant's servants to stop the train and avoid a collision. There was no time...