Germond's Adm'r v. Cent. Vt. R. Co.

• Decision Date: 28 February 1893
• Citation: 65 Vt. 126,26 A. 401
• Court: Vermont Supreme Court
• Parties: GERMOND'S ADM'R v. CENTRAL VERMONT R. CO.

26 A. 401

65 Vt. 126

GERMOND'S ADM'R

v. CENTRAL VERMONT R. CO.

Supreme Court of Vermont. Rutland.

Feb. 28, 1893.

Exceptions from Rutland county court; Ross, Chief Judge.

Action by D. W. Germond's administratrix against the Central Vermont Railroad Company. From a judgment for plaintiff, defendant excepts. Affirmed.

It was conceded that the plaintiff's intestate was killed by being struck by a locomotive under the control of the defendant. The accident occurred at a crossing in the village of Rutland. At that point the high way crosses several tracks of the defendant, and at the time of the accident, and for some time before, the defendant kept stationed there a flagman for the purpose of notifying the public when they might or might not cross. The track upon which the intestate was killed was known as the main passenger track. Directly west of this, and about 23 feet distant from it, is another track. The highway crosses both these tracks from east to west, and the tracks themselves run nearly north and south. The evidence of the plaintiff tended to show that the intestate was engaged in drawing lath from a car situated somewhere in the defendant's yard west of both these tracks, to some point east of the tracks, with a horse and lumber wagon; that he had loaded his wagon with lath, and had driven up to the westerly of these two tracks, which was at that time occupied by a freight train backing slowly to the south; that as soon as the engine, which was at the north end of the train, had cleared the crossing, the defendant's flagman, who also stood just to the west of these tracks motioned to the Intestate and another team, which was standing there, to cross; that the other team crossed in safety, and that the intestate undertook to cross, but was struck by a locomotive which was becking down from the south, drawing two empty passenger coaches. It was conceded that at some time the flagman attempted to stop the intestate, and the witnesses for the defendant testified that he warned him not to proceed before he had crossed the westerly track, upon which the freight train was, while the testimony of the plaintiff tended to show that he did not attempt to stop the intestate until after he had crossed this track, and got nearly, or quite, upon the track where he was struck. The evidence of the plaintiff further tended to show that one of the brakemen upon the freight train, seeing the danger of the plaintiff's intestate, shouted to the engineer upon the engine which was about to strike the intestate to stop; that the engineer upon the freight train took this to be a signal for him to stop, and that the freight train did stop just after it had cleared the crossing; that the freight engine was then blowing off steam; that several persons in the vicinity were shouting; and that there was, from one cause and another, a good deal of noise and confusion. After crossing the track upon which the freight train was backing down, the engine which struck the intestate was in full view as it moved towards him, and the defendant claimed that, even if he had been motioned to cross by the flagman, it was still his duty to look, and that he ought to have seen, and must have seen, this engine, and should have stopped before driving upon the track in front of it; and requested the court to direct a verdict for the defendant upon that ground. This the court declined to do, and the defendant excepted. The plaintiff claimed that the defendant was negligent in three particulars: First, in that its flagman improperly motioned the plaintiff's intestate to cross in front of the moving engine; second, in that the defendant had provided the train by which the intestate was struck with an insufficient and Incompetent crew; third, in that the defendant did not properly control its train at the time of the accident. The defendant insisted that there was no evidence in support of them which entitled the plaintiff to have them submitted to the jury. The court, however, submitted all three claims to the jury, with instructions to return a verdict for the plaintiff if they found the defendant negligent in any one of these three particulars. To the action of the court in submitting these last two claims to the jury the defendant excepted, upon the ground that there was no evidence to support them.

Geo. E. Lawrence and J. C. Baker, for plaintiff.

C. A. Prouty and C. W. Witters, for defendant.

TYLER, J. If the defendant's evidence had not been disputed, that as soon as the Delaware & Hudson train had backed from the crossing the deceased, in disregard of the flagman's signal and command to stop, drove across the Delaware & Hudson track, and then, with the defendant's locomotive in view, attempted to pass over the 23-foot space and the track of the defendant,...