Joseph Goupiel v. Grand Trunk Railway Co.

• Decision Date: 05 October 1920
• Citation: 111 A. 346,94 Vt. 337
• Parties: JOSEPH GOUPIEL v. GRAND TRUNK RAILWAY COMPANY
• Court: Vermont Supreme Court

111 A. 346

94 Vt. 337

JOSEPH GOUPIEL v. GRAND TRUNK RAILWAY COMPANY

Supreme Court of Vermont

October 5, 1920

February Term, 1920.

ACTION OF TORT, under the Federal Employers' Liability Act, for negligently exploding a railroad torpedo that struck plaintiff in the chest. Plea, the general issue. Trial by jury at the April Term, 1918, Essex County, Slack, J presiding. Verdict directed for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

Amey & Cameron for the plaintiff.

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

OPINION

WATSON

The evidence, taken in the light most favorable to the plaintiff, fairly tended to show the facts stated below.

On July 3, 1915, about 8:30 o'clock in the forenoon, the plaintiff was engaged as a section man, with others in the same line of employment, working for defendant railway company, putting in ties on its main line from Island Pond this State, to Portland, Maine, and from two to three hundred feet east of the depot at Wenlock in Vermont. When so there engaged, the defendant's way freight train east bound from Island Pond to Gorham in the state of New Hampshire, stopped at Wenlock for half an hour or so, to put a car on the spur track. When so stopped and standing still, the train and the locomotive hauling it were on the track of the main line. Just opposite the driving wheels of the locomotive, and standing about six feet away, were the plaintiff and other section men, waiting for the train to move away--it stood over the work being done by them.

There are two seat boxes in the cab to a locomotive like the one attached to this train. One is used by the engineer, and the other by the fireman, to sit on. These seat boxes are used for storing supplies, and in them torpedoes are kept for signaling purposes, being placed on the rails and exploded by running over them with the engine or cars, as a warning signal, in certain circumstances of danger. No. 15 of defendant's operating rules relates to the use of such signals, and specifies that torpedoes must not be placed near stations or public crossings, "nor where persons are liable to be injured by them." If they are exploded in signaling or otherwise without proper precautions being taken, the safety of persons in the vicinity is endangered by pieces of the metallic casing flying with great force in various directions.

The plaintiff is what is sometimes called a "Canadian jumper"; is nervous, and if another person touches him, shouting at the same time, or if anything thrown hits him, or if a loud noise be made, it makes him jump. While the train and the section men were standing as stated above, others of the latter and the fireman of defendant's locomotive who had got out of the cab, for their own amusement, and not otherwise, were having sport with the plaintiff, by throwing coal at him, and punching him in the ribs, to make him jump. In the course of this sport, and as a part of it, the fireman went up into the cab, got a torpedo, and put it on the rail just back of one of the forward driving wheels. He then motioned the engineer to start up. The engine was started by the latter, ran over the torpedo, exploding it, the plaintiff being hit by a flying piece of its metallic casing, and injured.

There was some discrepancy between the testimony given by the plaintiff and that given by John Bronson, one of the section men standing with the plaintiff at the time of the accident. No other witness gave testimony touching the particular matters following: The plaintiff testified that just before he was injured he saw the fireman and the engineer in the cab; that the witness was on the north side of the engine, which was the fireman's side; that the fireman was looking by the window of the cab, and the engineer was looking in the door--one was looking through the cab window and the other was looking by the door. Bronson testified that he stood on the south side of the engine, which was the engineer's side; that before the accident took place, he saw the engineer in the cab, in sight of the fireman when the latter got out, and looking at him--the engineer was leaning over the cab window looking out when the fireman put the torpedo on the rail; that the fireman had been punching the plaintiff, fooling with him, when he went into the cab and got something and put it on the track, the witness not then knowing what it was, but afterwards knowing it was a torpedo because it exploded; that the plaintiff stood beside the witness, and might have seen the same thing had he been looking; that at the time the fireman took the torpedo out of the cab and placed it on the rail, the engineer was looking out of the cab window, and looking at the fireman, and looking out of the cab window when the fireman gave the signal to start; that the witness thinks he is right in saying he stood on the south side of the engine, but may be mistaken.

If the plaintiff and the witness were on the fireman's side of the engine, as the plaintiff testified, there may be some doubt as to whether the engineer could, from where he was, see all that took place--all the fireman did--for certain it is that he could not, from his seat in the cab, see the driving wheels on the opposite side of the engine, nor could he see the fireman when he put the torpedo on the track just back of the forward one of those wheels. It may be said that the inference is that the engineer left his seat and went to and sat on the fireman's seat box in the cab, and from there looked out. Other than by inference there was no evidence that he so changed his seat. Nor is the inference all that way; for it may fairly be inferred that, in the proper performance of his duties, he remained sitting on his regular seat, and was there when looking out through the door, as plaintiff testified, and was there when he started the engine, running over the torpedo. This latter view of the evidence is more favorable to the plaintiff than the other, and so must be adopted in reviewing the ruling, directing a verdict for defendant.

On the part of the fireman, what he did in the respects named, was carrying out the sport which was being had at the expense of the plaintiff's peculiarities. The plaintiff knew nothing of the torpedo's being on the rail, nor of the danger from that source before he was injured.

At the close of the plaintiff's evidence defendant moved that a verdict be directed in its favor on grounds which may be comprehensively stated as follows: On all the evidence, viewed in the light most favorable to the plaintiff, the negligence complained of was done by the caprice of the fireman who placed the torpedo on the track, in the course of serving some purpose of his own in perpetrating a practical joke on the plaintiff, and not at all in the course of his employment,...