Grace Lefebvre's Admr. v. Central Vermont Railway Co

• Decision Date: 05 May 1926
• Citation: 133 A. 359,99 Vt. 366
• Parties: GRACE LEFEBVRE'S ADMR. v. CENTRAL VERMONT RAILWAY CO
• Court: Vermont Supreme Court

133 A. 359

99 Vt. 366

GRACE LEFEBVRE'S ADMR. v. CENTRAL VERMONT RAILWAY CO

Supreme Court of Vermont

May 5, 1926

November Term, 1925.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1924, Washington County, Willcox J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J W. Redmond and Horace H. Powers for the defendant.

Theriault & Hunt for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

When this case was here before (97 Vt. 342, 123 A. 211), the theory of the plaintiff was that the highway over which the decedent, Grace LeFebvre, was riding at the time of the collision in question at the crossing at Riverton station was regularly laid out and four rods wide. The theory of the defendant then was that the highway there was one established by user, dedication, or adoption, and that its width was only such as had become fixed by user. At the second trial, the record of which is now before us for review, the theory of both parties was that said highway at that place was of the latter character and that its width was limited by the actual occupation and use. The court so instructed the jury without objection. For the other general facts of the case reference is made to the opinion before rendered, in which they are fully stated.

The record treats defendant's main line as running north and south at the point of the accident, and the highway that crosses said main line just north of the passenger station as running east and west. The passenger station building is on the east side of said main line, and south of the highway. As stated in the former opinion (97 Vt. 342, 347, 123 A. 211, 213), "East of its main line, the defendant maintains a spur siding, which branches off at a point about thirty 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 thirty feet from the main line, and passing east of the station." The distance between the east rail of the main line and the west rail of the side track is 35 feet. It appears that the highway east of the railroad runs generally at right angles with it; but immediately west of the crossing the highway in fact bears to the right toward the line of the railroad, thence running northerly at approximately forty-five degrees with it.

The plaintiff charges the defendant with four grounds of negligence stated by the trial court in charging the jury as follows: First: That the defendant failed to give the signals required by law to be given by a locomotive engine in approaching a railroad crossing--that is, failed to give the signals by whistle or bell. Second: That the defendant, in view of all the conditions present at the crossing, operated the train in question on the occasion in question at an unreasonable rate of speed. Third: That the defendant maintained a ramp connected with the north end of the cinder platform, and that that ramp with its supporting timber on its west extended northerly into the limits of the highway, and that that platform and ramp constituted such an obstruction in the highway as to impede the movement of the automobile driven by (George) Bardis, and thereby caused said automobile to become stalled in the path of the oncoming train, resulting in the accident. Fourth: That the defendant failed to discharge its duty in respect to maintaining a crossing at the intersection of the highway in question, and carelessly and negligently failed to maintain its railroad in a reasonable manner for its own use at said crossing and for the use of travelers over said highway.

The jury returned a general verdict for plaintiff to recover $ 6,500, and returned special verdicts as follows:

(A) "1. Do you find that the defendant failed to give the statutory signal either by whistle or by bell? Answer: Yes.

2. Was such failure the proximate cause or a part of the proximate cause of the accident? Answer: Yes."

(B) "1. Do you find that the defendant operated its train on the occasion of the accident at an unreasonable speed in view of the existing conditions at the crossing? Answer: No.

2. Was such speed the proximate or a part of the proximate cause of the accident? Answer: No."

(C) "1. Do you find that the ramp, or a part of it, constituted an obstruction impeding travel in the highway? Answer: No.

2. Was such obstruction the proximate cause or a part of the proximate cause of the accident? Answer: No."

(D) "1. Do you find that the defendant failed to maintain its railroad at the crossing in a reasonable manner for the accommodation, safety and convenience of public travel? Answer: Yes.

2. Was such failure the proximate cause or a part of the proximate cause of the accident? Answer: Yes."

After verdict, and before judgment, defendant filed motions as follows:

"1. To set aside the fourth special verdict, the one in respect of the sufficiency of the main line grade crossing and its causal relation to the accident, because, on all the evidence in the case, and especially in view of the Third Special Verdict, the one in respect of the Ramp, and its causal relation to the accident, etc., as matter of law, no condition of the grade crossing at the main line for which defendant was legally responsible could have had any causal relation to the happening of the accident.

"2. To set aside the First Special Verdict, the one in respect of the issue as to whether the engine bell was rung as the statute requires, because, as matter of law, the jury were not justified in finding that plaintiff has sustained the burden of proof that rested on him as to that issue; and, as matter of law, on all the evidence in the case, there is not room for opposing inferences, there is not room for reasonable minds to differ on the proposition that plaintiff has not sustained the burden of proof resting on him in respect of that issue, and so the jury, as matter of law, were not justified in finding as recited in said Special Verdict.

"3. To enter judgment for defendant to recover its costs, because, for the combined reasons specified in the above paragraphs numbered 1 and 2, and in view of the Four Special Verdicts, defendant is entitled, as matter of law, to have judgment rendered in its favor on the General Verdict, viewed in the light of the Four Special Verdicts and of all the evidence in the case."

These motions were denied, to which denial defendant excepted; and judgment was entered for plaintiff to recover of defendant $ 6,500, to the rendition of which judgment defendant excepted.

The first point argued in defendant's brief is that its motion to set aside the first special verdict should have been sustained. As stated in the brief, this raises the question of law as to whether there was any evidence in the case to sustain the finding that defendant failed to give the statutory signals either by whistle or bell; and that such failure was the proximate cause or a part of the proximate cause of the accident.

Numerous witnesses, called by defendant, including the engineer and fireman of the train in question, gave positive testimony tending to show that the whistle of the locomotive engine was blown at the whistling post at least eighty rods north of the crossing, and that the bell of the engine was rung at the same point, and thenceforward automatically kept ringing until the train was stopped after the accident. No claim was made by defendant, nor did its evidence tend to show, that the whistle was blown other or later than as just stated. Such blowing of the whistle did not answer the requirements of G. L. 5173; but if the bell was rung as defendant's evidence tended to show, this was a compliance with the provisions of that statute. Howe v. Central Vt. Ry. Co., 91 Vt. 485, 101 A. 45; the instant case, 97 Vt. 342, 123 A. 211. The burden was with the plaintiff to show defendant's noncompliance with the law in this respect.

On the question so presented plaintiff introduced, without objection, the testimony of several witnesses as follows: George Bardis, a man about thirty years of age, the owner of the automobile used on the occasion in question and then driving it, testified that he knew there was a railroad crossing at the place of the accident; that between that place and a point some east of the covered highway bridge over Dog River about thirty rods east of the main line, the speed of the automobile was from ten to twelve miles an hour; that as he left the bridge he listened for a whistle or a bell on any train; that as he went along from the bridge toward the railroad crossing, he could not see up the railroad track, his view being hidden by Davis Brothers' stone sheds; that beyond those sheds was Davis Brothers' office, and beyond that office, going west, was the side track of defendant's railroad; that as his automobile went by the Davis Brothers' office, the witness looked to the right and left for trains, but saw none to the right; that after he went by the side track he still looked to see if there was any train coming, at the same time listening; that the witness, as he sat in his car, was about fifteen feet from the main line when he first saw the locomotive coming, up to which time he had not heard any whistle, nor any bell, nor warning of any kind from an approaching train; that when he saw the locomotive first, as just stated, there was not any sound of a ringing bell coming from it that witness heard; that he was attentive to the locomotive when he saw it, and attended to it.

It appeared that on that occasion there were beside Bardis riding in his car, Miss Anna J. Wilfore, who...