George Lamountain's Admx. v. Rutland Railroad Co.

• Decision Date: 19 November 1918
• Citation: 106 A. 517,93 Vt. 21
• Parties: GEORGE LAMOUNTAIN'S ADMX. v. RUTLAND RAILROAD COMPANY
• Court: Vermont Supreme Court

106 A. 517

93 Vt. 21

GEORGE LAMOUNTAIN'S ADMX. v. RUTLAND RAILROAD COMPANY

Supreme Court of Vermont

November 19, 1918

May Term, 1918.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the March Term, 1916, Rutland County, Fish, J presiding. Verdict, and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

M C. Webber and J. P. Leamy for the plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

On January 5, 1915, George LaMountain was engaged in unloading coal from a car standing on the defendant's siding near the Temple crossing in the city of Rutland. He was using sleds, and at the moment of the accident here involved he was snowing the crossing to facilitate his work. He obtained snow at a point about 20 feet north of the track carried it on a shovel to the place where he wanted it, deposited it there, and went back for more. While he was thus engaged, the defendant's train, approaching from the west, struck him, and inflicted injuries from which he died. The Temple crossing is the place where West street crosses both the Delaware & Hudson tracks and those of the defendant. To the west of it, the defendant's track is straight for more than half a mile, but when a person is standing at the place where LaMountain obtained the snow, his view to the west is somewhat obstructed by a large rock projecting from the bank. There was no gate or flagman at the crossing, and the plaintiff's evidence tended to show that the bell was not rung, and that the whistle was not sounded except at the whistling post 80 rods away. As the train approached the crossing, the engineer was in his seat on the right-hand side of the cab, the fireman was at work at his fire, and the head brakeman was in the fireman's seat on the left-hand side of the cab. The engineer and brakeman saw LaMountain, and understood what he was doing. As the train continued to approach the crossing, LaMountain passed back and forth from the snow bank, and finally passed out of the engineer's range of vision, being cut off by the front end of the engine. But the brakeman saw him longer, and made no effort to warn the engineer of his peril until he approached the track the last time, and was 10 or 12 feet from it. Then, immediately, the brakeman shouted and motioned to the engineer to stop, but it was too late. LaMountain discovered his peril and attempted to escape it, but was unable to do so.

The engine carried no pilot, but was equipped with a running board or step across the front, which extended at each end about a foot further than a pilot would, but not as far as other parts of the front end of the engine. It was but a few inches above the track, and the evidence indicated that it was what actually hit LaMountain as he was trying to get out of the way. The train consisted of nine cars and was running rapidly. The Temple crossing is on the most direct route from the city of Rutland to Center Rutland and Proctor, and there is much traffic over it.

Four grounds of negligence were charged as follows: (1) Failure to maintain a gate or flagman; (2) failure to signal by whistle or bell; (3) excessive speed; (4) running an engine equipped with such a running board. A motion for a directed verdict in behalf of the defendant was overruled, and the case was submitted to the jury on the doctrine of the last clear chance only. The verdict was for the defendant. Both parties saved exceptions, but the case is before us only on exceptions taken by the plaintiff.

Exception was taken to the ruling of the court limiting the issues as above stated. In this there was no error. So far as the first and fourth grounds of negligence above stated are concerned, it is enough to say that the evidence was not sufficiently strong or specific to warrant a finding of actionable negligence predicated thereon. However the facts may have been, the evidence was insufficient to require submitting it to the jury.

Assuming that the evidence on the other grounds tended to show that the defendant was culpably negligent, it is plain from the record that LaMountain was guilty of contributory negligence which as matter of law barred this action, unless it was saved by the doctrine of the last clear chance. So far we find no difficulty. LaMountain remained in utter ignorance of the approach of the train until it was right upon him. The least watchfulness for his own safety while engaged on the crossing would have saved him. Not only is this so, but the evidence was such that there was no room for the application of the last clear chance doctrine, and the motion for a verdict should have prevailed. In other words, LaMountain's negligence was continuous and operative clear down to the instant of the collision, or so near thereto that neither he nor the trainmen could avert it.

That no action will lie when the negligence of plaintiff and defendant proximately co-operate in producing the injury complained of is firmly established in our decisions. Trow v. Vt. Cent. R. R. Co., 24 Vt. 487, 58 Am. Dec. 191; French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 A. 722; Aiken v. Metcalf, 92 Vt. 57, 102 A. 330. This is so because contributory negligence is always a defence to actions of this character; and negligence is contributory in a legal sense when, and only when, it is a proximate cause of the injury.

But it is equally well settled that a plaintiff may in some circumstances, recover though negligent. This...