Kilpatrick v. Grand Trunk Ry. Co.

• Decision Date: 12 March 1900
• Citation: 47 A. 827,72 Vt. 263
• Parties: KILPATRICK v. GRAND TRUNK RY. CO.
• Court: Vermont Supreme Court

47 A. 827

72 Vt. 263

KILPATRICK

v. GRAND TRUNK RY. CO.

Supreme Court of Vermont. Orleans.

March 12, 1900.

Exceptions from Orleans county court; Thompson, Judge.

Action by Cornelius Kilpatrick against the Grand Trunk Railway Company. From a judgment in favor of plaintiff, defendant brings exceptions. Reversed.

At the close of the evidence the defendant moved the court to direct a verdict in its favor. This motion was overruled. The court instructed the jury that the effect of V. S. §§ 3886, 3887, was to exempt the plaintiff from the risks of his employment arising from the use of a ladder on the side of the car in question. The court submitted the case to the jury with instructions to find a general verdict, without reference to the question of contributory negligence. A special verdict was taken on the question, "Did the negligence of the plaintiff contribute to the accident causing his injury?" To this question the jury answered, "No."

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

Young & Young and E. A Cook, for plaintiff.

C. A. Hight, L. L. Hight and Chamberlin & Rich, for defendant TAFT, C. J. 1. The injury to the plaintiff was caused by his attempting to board a moving freight train by means of a ladder placed upon the side of a car. V. S. § 3886, reads as follows: "No railroad company shall run cars of its own with ladders or steps to the top of the same, on the sides of its cars, but said ladders or steps shall be on the ends or inside of the cars." Section 3887 provides that a railroad corporation not complying with the requirements of section 3886 shall be liable for the damages and injuries to employé on its roads resulting from such neglect. By force of the statute the defendant is liable for any injury to one of its employé resulting from its neglect in not placing a ladder or steps upon the end or inside of the car. The car in question was one belonging to the defendant, and it was its duty, which it failed to perform, to equip it as provided in the section referred to. The plaintiff, therefore, is entitled to recover, unless barred by the fact that he assumed the obvious dangers of the risk, or is chargeable with contributory negligence. As we dispose of the case upon the question of contributory negligence, we do not consider whether the plaintiff is barred from recovering by having assumed the obvious dangers of his employment. The point in respect to the special finding is not insisted upon by the defendant.

2. Did the court err in ruling that the question of contributory negligence was not in the case? It is urged by the plaintiff that the case is analogous to one arising under V. S. §§ 3871, 3877, relating to cattle guards, which provide that a corporation owning or operating a railroad shall construct and maintain cattle guards at all farm and railroad crossings, and fences along the right of way, sufficient to prevent cattle and animals from getting on the railroad, and making the corporation liable for the damages done by its agents or engines to cattle, horses, or other animals thereon, if occasioned by want of such fences and cattle guards. It was long since held under this statute that a railroad company was liable when a horse which was killed was an estray, and had escaped from the pasture through the negligence and carelessness of its owner. There are several cases in the late volumes of the Reports which hold the same doctrine. These cases can well be put upon the ground that the negligence of the plaintiff in permitting his animals to escape, stray away, and pass upon the railroad track was remote, and not proximate. If the negligence of the plaintiff consisted in his negligently driving cattle upon the track, at the time of the accident, it might well be claimed that such negligence was proximate, not remote, and that his neglect would bar a recovery. When the negligence of the plaintiff did not occur at the time of the accident, but was prior thereto, and consisted in permitting his...