Homer A. McDuffee's Admx. v. Boston & Maine Railroad

• Decision Date: 04 March 1908
• Citation: Homer A. McDuffee's Admx. v. Boston & Maine Railroad, 69 A. 124, 81 Vt. 52 (Vt. 1908)
• Parties: HOMER A. MCDUFFEE'S ADMX. v. BOSTON & MAINE RAILROAD
• Court: Vermont Supreme Court

69 A. 124

81 Vt. 52

HOMER A. MCDUFFEE'S ADMX. v. BOSTON & MAINE RAILROAD

Supreme Court of Vermont

March 4, 1908

October Term, 1906.

CASE for negligence.Plea, the general issue.Trial by jury at the June Term, 1905, Caledonia County, Munson, J., presiding.Verdict and judgment for the plaintiff.The defendant excepted.

Judgment reversed and remanded.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]

Young & Young for the defendant.

Present: ROWELL, C. J., TYLER, WATSON, HASELTON, POWERS, and MILES, JJ.

OPINION

MILES, J.

The defendant in its brief assigns five grounds of error the first of which is, that the court below erred in overruling its motion for a verdict.This ground is divided into several subdivisions denoted by the capital letters of the alphabet, beginning with "A" and ending with "F" inclusive.Under division "A" the question arises, whether there was any evidence in the case tending to prove that the plaintiff's intestate was in the service of the defendant at the time of the accident.If there was any such evidence, it is to be found on pages 7 to 36 of the exceptions inclusive.

From an examination of that evidence we are convinced that there was testimony that some person or corporation operated the water tank and spout in question to supply water for engines running through Lyndonville to Newport upon a line of railroad operated by such person or corporation, which ran past a station at Newport, along the east side thereof, having tracks and a bridge known as the "Boston & Maine tracks" and the "Boston & Maine bridge"; that on the opposite side of those tracks from the station, and near to them, was the water spout from which the plaintiff claims that the intestate received a fatal injury from which he afterwards died, and that at the time of his injury he was the servant of the person operating that spout.

There was no positive testimony in the case, which in terms stated that the defendant was the person or corporation operating the road or employing the intestate; but such person or corporation is mentioned by the attorneys of both parties, as well as by their witnesses, all the way through the trial, as "the railroad" or as "the railroad Co.," and not as a railroad or a railroad Co.The natural meaning of the expression used would indicate that they were referring to some railroad company then under consideration or discussion, and not generally to any railroad company.The only railroad company then under discussion was the defendant.This being so, the jury had a right to understand that when the witnesses and parties spoke of "the railroad company"they meant the defendant.The evidence therefore, had a tendency to prove that the defendant operated the water spout in question and that McDuffee was its employee.

This holding disposes of defendant's 9th, 10th and 11th grounds stated in its motion for a verdict and its 5th, 6th, 7th and 33rd requests to charge.

Under division "B," the question is raised whether there was any evidence of negligence on the part of the defendant.The evidence upon this point tended to show that the water spout when raised to its highest position, was so near the car that it would have hit a man of ordinary height, if he stood upon the top of it, a foot or more to one side of the running or center board, and that a man on top of the car signaling a train was forced to dodge the spout in order to avoid being hit by it.If such a dangerous structure could have been reasonably avoided it was the duty of the defendant to have done so, and to have placed this water spout at a reasonably safe distance from the track, so as not to endanger its servants who worked on its trains.Morrisette v. C. P. R., 74 Vt. 232, 52 A. 520;Choctaw O. & G. R. R. v. McDade, 191 U.S. 64;U. Pac. Ry. Co. v. O'Brien, 161 U.S. 451;Johnson v. St. Paul(Minn.)41 Am. & Eng. R. R. Cases 293;Allen v. The R. R. Co.(Iowa)5 Am. & Eng. R. R. Cases 620, and Chicago & I. R. Co. v. Russell, 91 Ill. 298.The foregoing cases rest upon the well established principle, that it is the duty of the master to furnish a reasonably safe place in which the servant is to perform his duties.The defendant, however, contends that there is no evidence tending to show but that the tank and spout were placed at a reasonably safe distance from the railroad track, in that the plaintiff has failed to produce any evidence tending to show that it could have been maintained at a safer distance at that place and have been reasonably useful for the purpose for which it was constructed.Assuming, but not deciding, that it was necessary for the plaintiff to show that the tank and spout could have been constructed and maintained in a safer manner at that place, the fact that the case discloses evidence showing the construction, general surroundings and location of the spout, made it necessary and proper for the court below to submit it to the jury for them to say from all that evidence, whether it was negligence on the part of the defendant to maintain it where and as it was at the time of the injury.That was the legitimate and proper evidence from which that fact was to be determined, and the defendant's argument upon this point is not supported by the facts.

Under this division the defendant discusses its requests, numbers 1, 2, 9, 10, 11, 12 and 13.No useful purpose can be served in disposing of these requests separately or with any great particularity.It is enough to say, that we think they were complied with so far as they were justified by the evidence and required by the issues legitimately raised in the case.

Under division "C" the question is raised whether the risk was assumed by McDuffee.If it was one of the ordinary risks incident to his employment, it was assumed when he entered the service of the defendant; and if it was an extraordinary one and which he had had an opportunity to ascertain and had in fact ascertained and comprehended its dangerous character, and continued in the defendant's service after ascertaining that fact, he also assumed that risk; but we think that risk was not an ordinary one which he assumed upon entering the defendant's service.It can well be said of this danger as it was said of a similar structure, in the case of Choctaw O. & G. R. R. v. McDade, 191 U.S. 64."Its maintenance under the circumstances was negligence upon the part of the railroad company."Existing as it did through the wrong of the defendant, it was an extraordinary risk and the intestate did not assume it unless he knew and comprehended the danger, or in the circumstances of the case will be taken to have known and comprehended it.Dunbar v. C. V. R. Co., 79 Vt. 474, 65 A. 528;Shattuck, Admr. v. C. V. R. Co., 79 Vt. 469, 65 A. 529.The burden of proving that McDuffee did not know and comprehend the danger, rested upon the plaintiff, and unless there was evidence in the case tending to prove that fact, the verdict should have been directed;Dunbar v. C. V. R. Co., supra.

We think there was evidence tending to prove that fact.McDuffee had never been over this road north of Lyndonville to Newport but twice before the accident, and there was no evidence in the case that he had ever before passed this tank and water spout which was so near that it was dangerous, and yet so far away that the danger was not obvious without measurement or careful inspection.It was in its nature a trap.Morrisette v. C. P. R. Co., 74 Vt. 232.The defendant lays much stress upon the fact that the spout was open and plain to be seen for quite a long distance before reaching it; but this is not the controlling fact.While the tank and spout could be plainly seen, the danger could not, and herein lay the mischief.Its apparent safety lulled the servant into fancied security, while the danger could be discovered only too late to be avoided.McDuffee's business was such that it did not require him to measure or inspect the spout and ascertain its distance from the top of a car, and therefore the natural inference would be that he did not do so.These facts, therefore, would be evidence tending to prove that he knew nothing of its danger; and if he had gone past it on his two previous trips, having passed it safely on those trips, he had no occasion to measure or inspect it, but had the right to rely on the presumption that the defendant had performed its duty and had provided a safe place for him in which to perform his services.

Under this division the defendant's attorneys discuss the 8th request.We think that request was fully complied with so far as it stated the law upon that subject.

Under division "D" the question is raised whether McDuffee was guilty of contributory negligence.

The ground upon which the defendant claims that McDuffee was guilty of contributory negligence is, that he was not looking in the direction in which the cars were moving at the time of his injury, and because he stood at one side of the running or center board on the top of his car.There were no facts or circumstances in the case from which it could be said that as matter of law, McDuffee was required to look in the direction in which the car was moving to discover dangers such as this was.While the evidence in the case tends to show that the running or center board is placed upon the car for the convenience of the brakeman, it does not show that it...