John C. Harrington v. Rutland Railroad Co

• Decision Date: 15 May 1915
• Parties: JOHN C. HARRINGTON v. RUTLAND RAILROAD CO
• Court: Vermont Supreme Court

94 A. 431

89 Vt. 112

JOHN C. HARRINGTON v. RUTLAND RAILROAD CO

Supreme Court of Vermont

May 15, 1915

Special Term at Rutland, November, 1914.

CASE for negligence. Plea, the general issue. Trial by jury at the September Term, 1913, Rutland County, Fish, J., presiding. At the close of all the evidence, the defendant moved for a directed verdict on the grounds stated in the opinion. Motion denied, to which defendant excepted. General verdict for the plaintiff and the special verdict recited in the opinion. After return of the verdicts defendant filed the motions recited in the opinion, which were denied and judgment rendered for the plaintiff on the general verdict, to all of which the defendant excepted. The opinion states the case.

Judgment reversed and judgment for the defendant.

Edwin W. Lawrence for the defendant.

Charles L. Howe and E. H. O'Brien for the plaintiff.

Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

OPINION

TAYLOR

The plaintiff was injured at the Park Street grade crossing of the Rutland Railroad in the city of Rutland on July 23, 1912 about 10:20 o'clock in the forenoon. The crossing in question is at the northwest corner of the Rutland Fair Ground. The Bennington Branch of the defendant's railroad crosses Park Street nearly at right angles. The railroad at that point is a straight line running practically north and south and to the south of the crossing is a straight line for about four miles. The railroad ascends a slight grade as it approaches the crossing from the south. Park Street in the vicinity of the crossing is a straight line running a little north of east and south of west. The grade of the street is slightly descending from the east toward the crossing, a total of 3.7 feet in 200 feet. On each side of the main line track as it crosses the highway is a sidetrack. The siding on the east extends southerly from the crossing about 730 feet and that on the west extends still farther south.

The view to the south as one proceeds toward the crossing from the east is obstructed for a distance by some buildings and a high board fence on the Fair Ground. The board fence ends at a point 78 feet east from the center of the main track. From that point west to the northwest corner of the Fair Ground and thence southerly on the west line thereof for a considerable distance, the fence is of posts and wire and does not hinder the view. But for cars that may be standing on the east siding, at a point 90 feet east along the center of Park Street from the center of the main line a person would have a clear view of the railroad tracks south for a distance of at least 500 feet from the center of the crossing. As one approaches the crossing the range of vision increases rapidly. At a point 78 feet from the crossing the tracks are visible for a distance of 1000 feet from the crossing. There is a platform east of the east side-track adjacent to the Fair Ground but not of sufficient height to obstruct the view of any one walking or riding along Park Street. On the west side of the railroad and south side of Park Street is the Stewart Canning Factory, and the west side-track is employed in part as a loading track for this factory.

On the day in question there were three box cars standing on the west siding in front of the Stewart Factory and some other box and coal cars still farther south on that siding. None of these cars interfered with the view of the main line south of the crossing. There was a string of coal cars coupled together 354 feet long standing on the east siding in front of the Fair Ground platform. The north end of the string was above 150 feet south of the center of the crossing. The top of these cars was 8.4 feet above the rails. They would only partially obstruct the view of a passenger train approaching the crossing from the south on the main track. The train that collided with the plaintiff's team was a passenger train due at Rutland at 10:15 and running about ten minutes behind schedule time. It consists of an engine, a baggage car, a mail car, a smoking car and a passenger coach. The top of cab of the engine was 14 feet above the rails; the top of the dome, 14.4 feet; and the top of the stack 14.6 feet. The height of the mail car was 14 feet and of the other cars 13 feet and 7 inches.

The plaintiff testified that there was a box car standing on the east siding near the street and that the siding south was filled with coal cars. The defendant's evidence showed to a demonstration that there was no box car on the east siding and that the coal cars stood as described above. By a special verdict the jury found that the cars on the east siding were as the defendant claimed, both as to kind and location.

The plaintiff, a man 72 years old, was driving west along Park Street in an express wagon. His head was about 5 feet 8 inches above the ground as he sat in the wagon. His hearing and eyesight were good. He had lived a short distance west of the crossing for four years and was familiar with the locality. He knew approximately when the passenger train was due. He testified that at a certain point on Park Street he looked at his watch and observed that it was after the time when the train should pass, and said he thought it might have gone past. The horse that the plaintiff was driving was gentle and there was nothing to show that the plaintiff's conduct was in any way influenced by the actions of the horse. As the team approached the crossing the horse was walking. The plaintiff testified that he was listening and looking, but that the cars on the east siding prevented his seeing a train approaching from the south; that just before he reached the east siding he stopped his horse to listen for an approaching train; that hearing nothing he started his horse walking; and that just as he started he looked up and caught sight of the engine just as it hit his horse. He testified that he listened for, but did not hear, any whistle or bell, and that the whistle did not blow nor the bell ring. It was a clear pleasant day and there was no wind. There was no evidence of any noises to interfere with his hearing.

The engineer testified that the usual crossing whistle was given at the whistling post 80 rods south of the crossing; that he immediately turned on the automatic bell-ringer; that the bell continued to ring until after the accident; that when the engine was 250 or 300 feet from the crossing he saw the plaintiff a short distance from the crossing "jogging along with his head down apparently paying no attention;" that thereupon he applied the emergency brake and gave the danger signal--several short blasts of the whistle; that plaintiff did not pay any attention to the danger signal at first but kept driving along, his head down; that when the engine was close to him plaintiff pulled on the reins and the horse reared and struck the engine just back of the forward drive wheels. The plaintiff testified in cross-examination that his horse had just passed the side-track onto the east rail when he caught sight of the approaching train; that he tried to pull the horse back, thinking if he could back him the train wouldn't hit him; that the engine struck so quick he couldn't tell whether the horse had yielded to his pulling. The conductor of the train, whose attention was attracted by the danger signal, and three other witnesses in the vicinity described the accident substantially as did the engineer. The undisputed evidence fairly tends to show that the horse had just reached the east rail when the collision occurred. Whether it reared when plaintiff pulled on the reins and came down onto the engine, or was struck by the front of the engine, is, in the circumstances, of little moment.

The defendant's evidence tended to show that the train was going about 20 miles an hour as it approached the crossing before the emergency brake was applied. When it stopped immediately after the accident, the rear end of the train was just over the crossing. The only evidence to the contrary was a statement by the plaintiff that "it (the train) was coming pretty fast" at the time it struck him, and the testimony of another witness that, at a point south of the Fair Ground, the train "was going pretty good speed." This evidence is of little force in view of the uncontradicted evidence that the train came to a stop in going its length after the accident and in going twice its length after the emergency brake was applied. It is reasonably certain that the speed of the train before the emergency brake was applied did not greatly exceed 20 miles per hour.

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