Gover v. Central Vermont Railway Co.

• Decision Date: 20 November 1922
• Parties: ALEXANDER GOVER v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

118 A. 874

96 Vt. 208

ALEXANDER GOVER v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

November 20, 1922

February Term, 1922.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1921, Franklin County, Butler J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J W. Redmond and W. R. McFeeters for the defendant.

M H. Alexander for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The plaintiff alleges negligence resulting in defendant's train colliding with his team at a grade crossing from which he suffered personal injuries and damage to property. The trail was by jury with verdict and judgment for the plaintiff. The negligence claimed consisted of the alleged insufficiency of the crossing, in that it was not properly planked, and failure of the engineer in not seasonably stopping the train after he knew, or ought to have known, of plaintiff's peril.

At the close of the evidence the defendant moved for a directed verdict on several grounds. The exceptions saved to the overruling of the motion and to the charge present the principal questions for review. For the most part there was no controversy in the evidence. The crossing in question is about one mile north of Georgia station. The highway of which the crossing is a part is not much traveled, and crosses the railroad track diagonally in an easterly and westerly direction. The accident occurred at about six o'clock in the evening of December 11, 1920. It was quite dark and had been snowing and the wind blowing so that the snow was drifted over the roadway in the vicinity of the crossing. It so covered the track of teams in the vicinity that the plaintiff could not see the crossing. He was engaged in moving his daughter's household furniture from Georgia to Fairfax and had a span of horses attached to a pair of travers sleds, the load weighing about 2,800 pounds. At the time of the accident the plaintiff was going easterly over the crossing. The highway at that point crosses the track at an acute angle, the two being nearly parallel for some distance on either side of the crossing. As the crossing was planked, a team approaching it from the west had to turn to the left as it drove onto the crossing, and to the right as it was leaving it, to keep on the planking. Even then the course of travel over the crossing was nearer the south end than the north end of the planking. In other words, if the driver of a team followed the general course of the highway without turning he would drive off the south end of the planking. This is what happened to the plaintiff as he attempted to make the crossing. He followed the general course of the highway without turning and got off the south end of the planking. The rear sled caught on the west rail in such a manner that the load became stalled and could not be moved. While attempting to get the sled off the crossing the plaintiff discovered the train approaching from the south. The track in that direction is straight for about 1,900 feet from the crossing. The first warning the plaintiff had of the approach of the train was the reflection of the headlight as the train reached a curve some distance farther south. He ran down the track between the rails a short distance with a lighted lantern and waived the lantern across the track as a signal for the train to stop. He then dropped the lantern, ran back to the team, and attempted to unhitch the horses. He had unhitched one horse and was attempting to free the other when the train struck the sled, causing the damage complained of. The train, consisting of the locomotive, two passenger coaches, and a baggage car, was not stopped until the rear end was about 120 feet north of the crossing. It was running about thirty miles an hour when the brakes were applied. The collision demolished the sled and injured the horse that was still attached to it. The plaintiff also received personal injuries for which he sought to recover.

One ground of the motion was that there was no evidence tending to show negligence on the part of the defendant respecting the construction of the crossing. But we think the evidence made that a jury question. It is said that "the crossing was planked with the travel and as the crossing was used." However, it was not planked as travel would naturally go, and it may well be that the planking was the cause, and not the result, of the usual course of travel over the crossing. It was for the jury to say whether, in the circumstances, the planks should not have been differently placed. It is urged as another ground of the motion that there was no evidence tending to show that any defect in the crossing caused the plaintiff's team to be stalled thereon. Whether the defective planking of the crossing, if so found, was the proximate cause of the team's being stalled, was, on the evidence, clearly a question for the jury. Considering the angle at which the runner that was off the planking struck the rail the position taken by the rear sled was perfectly natural and did not, as defendant argues, indicate that the sled was not properly constructed. Nor can it be said as matter of law that the stalling on the crossing was due to negligent driving. The plaintiff was not familiar with the crossing, though he had passed over it earlier the same day. The snow that had fallen and drifted over the roadway concealed the tracks of travel, which otherwise would probably have indicated to him the course to be taken over the crossing. He was carrying a lighted lantern, but with its aid could see nothing to show that the road did not follow a straight course ahead. It must be held that the court did not err in submitting to the jury the question of the defendant's negligence respecting the maintenance of the crossing.

Other specified grounds of the motion raise the question whether there was any evidence tending to show the claimed negligence in operating the train. It must be conceded that the defendant's evidence strongly indicated that the engineer did everything possible to stop the train after he became aware of the plaintiff's dilemma. The engineer testified that he saw the signal to stop given by the plaintiff and immediately shut off steam and applied the full emergency brake; and that the train was then about fifteen rods from the crossing. This testimony was corroborated by the other trainmen. But the evidence on this branch of the case was conflicting. The plaintiff's evidence tended to show that the signal to stop was given when the train was at least 1,900 feet from the crossing and that the speed was not slackened as the train approached. The distance within which the train could have been stopped did not appear, but it was conceded that it could have been stopped in less than 1,900 feet. On the evidence, considered in the light most favorable to the plaintiff, the question could not be ruled as a matter of law, but was properly submitted to the jury. The signal to stop was seen and understood by the engineer. If given when the plaintiff's evidence tended to show it was, there could be no doubt that the jury would be justified in finding that the failure to stop the train and avoid a collision was due to negligence chargeable to the defendant.

At the trial the defendant claimed that, so far as injury to himself was concerned, the plaintiff assumed the risk when he undertook to unhitch the horses with the train "right on him," and excepted to the failure of the court to charge on that phase of the case. The evidence was conflicting as to where the train was when the plaintiff got back to the team after giving the signal for the train to stop. However, there was evidence tending to show as the defendant claimed in that regard. The court charged fully with respect to contributory negligence; but a proper charge on that subject would not suffice, if the evidence made a case for the application of the doctrine of assumed risk. Mundle v. Hill Mfg. Co., 86 Me. 400, 30 A 16; Miner v. Conn. R. R. Co., 153 Mass. 398, 26 N.E. 994. It is now generally recognized that there is a distinction between the doctrine of contributory negligence and the doctrine of assumption of risk. Note 18 Ann. Cas. 960. While this was left an open question in Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 16, 66 A. 801, the existence of such a distinction has come to be recognized by this Court. Carleton v. Fairbanks Co., 88 Vt. 537, 548, 93 A. 462; Pette's Admr. v. Old English State Quarry, 90 Vt. 87, 93, 96 A. 596; Robey v. Boston & Maine R. R., 91 Vt. 386, 100 A. 925. The occasion for considering the distinction so seldom arises, except with respect to the relation of master and servant, that it seems to have been quite generally understood that the doctrine of assumption of risk is confined to cases arising out of that relation. Some courts hold that the doctrine has no application in actions for negligence where the parties do not occupy a contractual relation. Among the cases so holding are Conrad v. Springfield Con. Ry. Co., 240 Ill. 12, 88 N.E. 180, 130 Am. St. Rep. 251; City of Linton v. Maddox (Ind. App.), 130 N.E. 810; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508; Campbell v. Railway Tr. Co., 95 Minn. 375, 104 N.W. 547; Wilkins v. Water & Light Co., 92 Neb. 513, 138 N.W. 754. Other courts regard the distinction, at least in cases not affected by a contractual relation, as purely theoretical, holding that in its practical application to such cases the doctrine of assumption of risk necessarily involves that of contributory negligence. See United Rys. & Elec. Co. v. Riley, 109 Md. 327, 71 A. 970; 18 R. C. L. 675. Still...