Ingram v. Rutland R. Co.

• Decision Date: 12 May 1913
• Citation: 86 A. 813,86 Vt. 550
• Parties: INGRAM v. RUTLAND R. CO.
• Court: Vermont Supreme Court

86 A. 813

86 Vt. 550

INGRAM

v. RUTLAND R. CO.

Supreme Court of Vermont. Brattleboro.

May 12, 1913.

Exceptions from Windham County Court; E. L. Waterman, Judge.

Action by Lilla W. Ingram, administratrix, against the Rutland Railroad Company. From a judgment overruling a demurrer to the declaration, defendant excepts. Affirmed, and cause remanded for trial.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

Arthur P. Carpenter, of Brattleboro, for plaintiff.

Edwin W. Lawrence, of Rutland, for defendant.

HASELTON, J. This is an action of case for negligence, brought by the plaintiff for the benefit of the widow and next of kin of Arthur Ingram, deceased. The declaration, which is in three counts, was demurred to, and on hearing the demurrer was overruled and the declaration adjudged sufficient. The defendant excepted, and the cause was passed to this court before final judgment.

We first consider the second count and the third, since they are identical, except in one particular, which will be noticed in passing, and since they state the plaintiff's case with more of circumstance than does the first count.

We give a statement of some of the facts alleged in the counts now under consideration and to be taken as true as the case now stands. The defendant, the Rutland Railroad Company, owns a railroad yard at Bellows Falls, and the tracks, side tracks, and switches in the yard are used jointly by the defendant and the Boston & Maine Railroad under a trackage arrangement whereby the latter company operates its engines and trains over the tracks and switches in the yard and makes up trains there and dispatches them therefrom, and for these purposes employs many men in and about the yard. November 30, 1909, at about 6 o'clock in the afternoon, the Boston & Maine Railroad was running a locomotive over the tracks for the purpose of making up and dispatching trains, and at the same time the defendant corporation was running a locomotive over the tracks for the purpose of switching cars and making up and dispatching trains. It was the duty of the defendant so to light the yard that the employés of the companies there could see engines and cars as they were switched, backed, shunted, or kicked from track to track in the yard, and it was the duty of the defendant to have upon the cars so handled at that time lights to warn persons lawfully on or near the tracks of the approach of the cars so handled, and to have trainmen upon the cars to look out for trainmen rightfully in the yard. The defendant backed one of its engines upon a side track in front of a milk depot for the purpose of taking a milk car and making it a part of a train then being made up. The car was drawn onto the main track and then the engine was reversed and run back, pushing the cars along the main track at a very rapid and dangerous rate of speed. There was no light upon the car and no trainmen upon the car in a position to see along the track in the direction in which the car was being rapidly pushed. Meanwhile Arthur Ingram, the plaintiff's decedent, and other employés of the Boston & Maine were waiting to take a milk car from the side track of the milk depot; the engine with which they were switching cars, and upon which Ingram was employed as a fireman, being upon a side track easterly of the main track. During this wait Ingram went to the milk depot, according to the second count, to see if the car for which the Boston & Maine men were waiting was ready to be taken out, according to the third count to get a drink of milk. While Ingram was at the milk depot the engineer on the Boston & Maine engine signaled for his crew by blowing the whistle of the engine, and thereupon Ingram started back across the tracks towards the engine upon which he was employed and was hit and killed by the defendant's car, already referred to, which was being handled in the manner already described. Both the counts under consideration allege that Ingram was in the exercise of due care on his part, and that the catastrophe...