Kilet v. Rutland R. Co.

• Decision Date: 03 February 1908
• Parties: KILET v. RUTLAND R. CO.
• Court: Vermont Supreme Court

68 A. 713

80 Vt. 536

KILET

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

Feb. 3, 1908.

Exceptions from Rutland County Court; Loveland Munson, Judge.

Action by Eugene Kiley against the Rutland Railroad Company. There was a verdict and judgment for plaintiff, and defendant excepted. Affirmed.

Argued before ROWELL, C. J., and TYLER, WATSON, and HASELTON, JJ.

Butler & Moloney, for plaintiff. H. Henry Powers and P. M. Meldon, for defendant

HASELTON, J. This was an action on the case for negligence. It appeared that the plaintiff was conductor of a local freight train of the defendant which left North Bennington for Rutland June 3, 1903, in the afternoon. The train, as made up at North Bennington, a terminal point, consisted of some 22 or 23 cars, counting the caboose and a passenger coach which were at the rear, and the length of the train was not greatly varied, though at different stations cars were set out and others were taken in. The plaintiff was injured at North Dorset, where a small amount of freight was unloaded. At the close of the evidence the defendant moved to have a verdict directed in its favor. This motion was overruled, and the defendant took an exception. The entire evidence is referred to on the questions raised by this exception.

The plaintiff's evidence tended to show that the passenger coach was behind the caboose at the very rear end of the train, was empty of passengers, and had gates and "a good deal of rigging" at the rear entrance thereto. His testimony tended to show that the freight that was unloaded at North Dorset was unloaded from a car about the middle of the train; that the cars were from 28 to 40 feet in length, making the train a long one, and leaving the rear end of the train a very considerable distance from the station; that the night was dark and the station unlighted; that all the light the plaintiff had was from his lantern; that, after the freight was unloaded at North Dorset, the plaintiff did not travel back in the darkness with his lantern to the caboose before giving the signal for starting, but that he gave, or caused to be given, the signal from the platform; that the train started, and that he then moved hastily towards the rear of the train as far as the end of the platform, which was a gravel structure; that on account of the darkness he was uncertain as to how far from him the rear end of the train was; that as the speed of the train was increasing, and as the caboose would be followed by a passenger car, he thought it might be unsafe to wait for the caboose, as he would have otherwise considered it safe to do, and that on account of the gearing of the gates at the rear end of the passenger coach he thought he might get his hand caught if he waited for the very rear end of the train, and that therefore, out of regard for his safety, as a Boston & Maine car, which proved to be the fourth car from the last, was going by at about six miles an hour, he took hold of* the grab iron on the side of the car, put his foot on the stirrup below, swung himself around the end of the car to the end ladder, placed his foot on the lower round of the ladder, took hold of one of the upper rounds with his hand, was safely on the ladder, and was climbing it, when the inside end of a round which he had hold of gave way, causing him to lose his balance and fall; that he overlooked or omitted nothing in the regular process of climbing; that the speed of the train had nothing to do with the giving away of the round; and that the only thing that had anything to do with his fall was the giving way of the round in question. The plaintiff testified to long service OD the defendant's road, and to familiarity with its rules; that he knew the rules required him to look out for his safety; that he considered the course he took a safe one; that the way in which he proceeded was a usual and ordinary way; and that grab irons and stirrups were provided for the purpose of enabling trainmen to board a train in motion as well as to get onto one standing still. The plaintiff, though testifying that the inside end of the round gave way so that the round hung down, did not undertake to say how it gave way. He, however, called as a witness one Collins, whose testimony, taken with other testimony, tended to show that the fastening at one end of the round pulled out, leaving splinters and rotten wood visible.

The defendant's evidence tended to show that the plaintiff was under the influence of intoxicating liquor at the time of the accident, while evidence on the part of the plaintiff tended to show that he was sober and had not been drinking. The evidence of two car inspectors of the defendant, Schryer and Taylor, tended to show that an inspection made after the accident disclosed no such condition as must have existed if the testimony of the plaintiff and Collins was true. A considerable part of the evidence of the defendant was directed to the point that the accident did not happen in the manner testified to by the plaintiff. The car inspector of the defendant at North Bennington was one Howley, and his testimony tended to show that the inspection of the cars in the Kiley train was made by him after the train was drawn up, and was made by walking along on each side of the train and looking at the cars, their running gear, ladders, and so forth. There was some evidence of an examination of some of the cars in Kiley's train before the train was made up, but there was evidence from which it could fairly be inferred that the only real inspection of the car in question was made when it was in the train as before stated. The nature of that inspection, as the testimony tended to show it, has been referred to.

The first ground of the motion to have a verdict directed for the defendant was: "That the attempt of the plaintiff to board the train in motion, as testified to by him, without any necessity then pressing upon him, but, as he says, because he had done it before safely and he supposed he could safely do it again, and whether he lost his job or not, if left behind, was negligence per se; and that, as matter of law on the plaintiff's own testimony in this behalf, he assumed the risk of the experiment, and could not recover damages received thereby, whether the defendant was negligent or not in respect to the condition of the ladder, and whether or not the plaintiff was under the influence of Intoxicating liquor." But enough references to the testimony have been herein made to show that it cannot be said as matter of law that in no view of the evidence was the plaintiff free from contributory negligence. There was a view of the evidence which reasonable men might take that exonerated him from contributory negligence that was inconsistent with the claim that his manner of boarding the train was an "experiment"—a view that recognized his right to be where he was when the round gave way, and that contemplated the giving way of the ladder round as the sole cause of the injury.

The second ground of the defendant's motion for a verdict was as follows: "The car claimed to have been defective, being on the plaintiff's own testimony a foreign car, the defendant owed the plaintiff the duty only of inspection by a competent inspector, and no claim is made by the plaintiff that the inspector was incompetent, except in the single instance of the inspection of the plaintiff's train in the manner above stated." No question was made but that Howley was competent, and in view of the course of the argument this statement of the second ground for the motion is treated as raising the question of whether there was evidence tending to show that his inspection in this instance was negligent. From a review of the evidence it is clear that it cannot be said as matter of law that Howley's inspection was not negligent it appears from the evidence of the defendant that the inspection made by Howley was substantially the same as that made by the two inspectors of the company who inspected the train after the injury to Kiley, and who, as they testified, found nothing wrong about the ladder or rounds. If the jury believed Kiley and Collins and also all the inspectors, they may well have found that Howley's inspection was negligent under any standard of duty whatever.

The third ground of the defendant's motion for a verdict was that Kiley, the plaintiff, did not make the inspection required of him by a written rule of the company with which he was familiar, and that by such failure he was guilty of contributory negligence, and therefore could not recover. The rule invoked is 510 of the defendant company's book of rules, and reads as follows: "Trainmen must inspect their trains before leaving a terminal and at intervals during the trip." Kiley testified to the effect that what the trainmen did under the rule was to look the trucks over to see if the connections were all right, if the trucks were coupled up and in working order. His evidence tended to show that this train inspection did not relate to the ladders, and was something different from the inspection of the cars. There is nothing unreasonable in the view that a rule which imposes upon all trainmen the duty of inspecting their trains at terminals and at intervals during a trip is a very different duty from that imposed upon car inspectors at terminal stations, and the practical construction which Kiley testified was put upon the rule by trainmen seems to be the true one. The motion to have a verdict directed for the defendant was properly overruled. The defendant was entitled to have the case submitted to the jury under proper instructions as to contributory negligence and the assumption of risks, but in the state of the evidence the case could not be taken from the jury.

The defendant submitted seven requests to charge which were not in terms complied with. The first request was: "That the plaintiff must prove every affirmative allegation material to the...