John Gilman v. Central Vermont Railway Co.

• Decision Date: 20 May 1919
• Citation: 107 A. 122,93 Vt. 340
• Parties: JOHN GILMAN v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

107 A. 122

93 Vt. 340

JOHN GILMAN v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

May 20, 1919

February Term, 1919.

TORT FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the June Term, 1918, Orange County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover its costs.

John W. Redmond and Chas. F. Black for the defendant.

March M. Wilson for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH SUPR., J.

OPINION

TAYLOR

The accident out of which this action arose is unique in the annals of highway crossing accidents in this State. The action is for damage to plaintiff's automobile occasioned by running into a freight train that was standing at a grade crossing on Church Street in the village of Bethel on the line of defendant's railroad. The accident occurred about 2:45 a. m., August 30, 1917. Church Street crosses the railroad nearly at right angles, the railroad at that point running substantially north and south. The highway approaching the railroad from the west descends quite a steep hill, with buildings and banks on either side. The road is straight and the crossing visible to one approaching from the west for at least 250 feet. About 450 feet south of the crossing was a switch controlling a "passing track" that extended thence south. At the time in question defendant's freight train, which was south bound, had arrived at Bethel under orders that required it to take said passing track. It consisted of a locomotive and 43 cars. The usual crossing signals were given, and, when the locomotive reached a point about a car length from said switch, it halted and a brakeman went forward to the switch, threw it and the train moved onto the side track. There was a controversy as to the length of time the train occupied the crossing, the defendant's evidence tending to show that it halted only a matter of seconds while the switch was being thrown, and the plaintiff claiming that there were circumstances tending to show that it had been there more than five minutes.

Plaintiff was driving his car from Randolph to Bethel Village. He stopped about five minutes at the head of Church Street to leave a passenger and then proceeded to the crossing. The highway he had traversed for the most part of two miles and a half from Bethel towards Randolph was near and in plain sight of defendant's track, and the head and part of Church Street were in sight thereof. His evidence tended to show that neither he nor the other occupants of the car saw or heard any train on the track that night after leaving Randolph until they reached the crossing, and that they had good opportunity both to see and hear. The night was rainy and misty, and the automobile top and wind shield were up. About 50 feet east of the track was a covered bridge over the river, which was lighted by electric lights. The bridge was undergoing repairs, and there were also lanterns on the end of the bridge towards the railroad that were visible to the plaintiff as he descended the hill towards the crossing. Plaintiff was well acquainted with the locality and the condition of the road. As plaintiff started down the hill he threw out the clutch and applied the brakes, which worked properly, and slowed the speed of the car to ten miles an hour or less. He looked and listened and saw and heard nothing. Part way down the hill he relaxed his brake somewhat to increase his speed a little, but kept his foot on the brake. When a short distance from the track he discovered the train and put on the brakes, which held; but the car, with its wheels locked, slid forward into the train, owing to the steepness of the grade and the wet and slippery condition of the road. The damage to the car was occasioned by the train starting just as the car struck it. Plaintiff saw no light at the crossing or on the train, and first discovered the presence of the train when he reached a point where the cars obstructed the light from the bridge, a distance of 15 to 20 feet from the crossing. The road had been recently oiled and was greasy. Such was the tendency of the evidence, regarded in the light most favorable to the plaintiff.

The defendant relies only on its exception to the denial of its motion for a directed verdict. The several grounds of the motion assigned in the court below may be summarized as follows: (1) The evidence shows that the plaintiff was unlawfully traveling the highway at the time of the accident, and so was a trespasser, and that the defendant was not guilty of any shortage of duty owed to the plaintiff. (2) There is no evidence in the case tending to show any negligence on the part of the defendant. (3) On the evidence plaintiff was guilty of contributory negligence. In overruling the motion the court expressed grave doubt as to whether it should not be granted, but deemed it advisable to take that course that the case might be finally determined in this Court.

Concerning the first ground of the motion it was conceded that the plaintiff bought the automobile in question a month or six weeks before the accident; that it had been registered by the former owner, but that the plaintiff had not had it registered in his name as required by law. G. L. 4716 provides that an automobile or motor vehicle shall not be operated upon a public highway, or a private way laid out under authority of law, unless registered as provided in the preceding sections. By G. L. 4718 a person who violates a provision of the chapter of the statutes relating to the regulation of automobiles and motor vehicles, for which other penalty is not provided, is subjected to a fine of not more than one hundred dollars. It is provided elsewhere in this chapter that, upon the sale of an automobile, its registration shall expire, and that the purchaser shall take out new registration (G. L. 4677); and that the fee for reregistering the automobile shall be one dollar, provided it is done within five days after the purchaser comes into possession of the automobile. G. L. 4674.

The defendant's claim is that the plaintiff was unlawfully traveling on the highway, had no right to be there, as he was violating the law of the State; and, therefore, it was under no duty to take precaution for his safety while so using the highway approaching the crossing. The defendant relies upon an Alabama case and several Massachusetts cases, that fully sustain its contention. It is there held, under statutes similar to ours prohibiting the operation of unregistered automobiles on the highways, that the violation of this prohibitive statute makes a plaintiff a trespasser and not entitled to the privileges and protection which the law accords to a traveler on the highway. The unregistered automobile is regarded as "outside the pale of travelers" on the highway and as having no rights there except to be protected from reckless or wilful injury.

This provision of our statute regulating automobiles is now for the first time brought in question here. The Massachusetts Court had occasion to construe the statute in Holden v. McGillicuddy, 215 Mass. 563, 102 N.E. 923, which was an action for injury to plaintiff's automobile from a collision at Guilford, Vermont. In the absence of evidence of the "common law" of this State on the subject, the court applied the Massachusetts rule and held that the plaintiff was a trespasser upon the highway, and that the defendant had violated no duty owed to him, though the jury, had found, by special verdict, that the defendant was not in the exercise of ordinary care at the time of the accident.

The statute regulating automobiles and motor vehicles was enacted in 1904 (No. 86, Acts of 1904), and appears to have been taken bodily from the Massachusetts statute of the preceding year. The provision of the latter statute similar to the one now under consideration first came under consideration in 1908 in Doherty v. Town of Ayer, 197 Mass 241, 83 N.E. 677, 14 L.R.A. (N.S.) 816, 125 Am. St. Rep. 355. The construction given by the Massachusetts courts furnishes no guide to the legislative intention in this State, since their decisions were subsequent to the adoption of the statute here; but a brief review of the Massachusetts cases may prove helpful as showing where the rule adopted there leads to. It was said in Doherty v. Town of Ayer, supra, that since the plaintiff was upon the road only as one riding in and operating an automobile, if it was unregistered and if he was unlicensed, he had no relation to the highway, and he was in no sense a traveler, except as a violator of the law in reference to the use that may be made of the way. It was further said, in regard to the right of recovery, that a violation of the statute in this particular so affected his relation to the town in regard to the way and the only use he was making of it, as to leave him without remedy for an injury caused by a defect therein. In Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N.E. 25, 23 L.R.A. (N.S.) 561, while recognizing the general principle that for an unlawful act to preclude recovery it must have directly contributed to the injury, the court held that the Legislature intended to outlaw unregistered automobiles and to give them, as to persons lawfully using the highways, no other right than that of being exempt from wanton or wilful injury; that the plaintiff was a mere trespasser, not only as to the owner of the soil, but also against the rights of all other persons who were lawfully using the highway; and that the defendant owed him no duty except to abstain...