Kilpatrick v. Grand Trunk Ry. Co.

• Citation: 52 A. 531,74 Vt. 288
• Court: Vermont Supreme Court
• Decision Date: 14 March 1902
• Parties: KILPATRICK v. GRAND TRUNK RY. CO.

52 A. 531

74 Vt. 288

KILPATRICK

v. GRAND TRUNK RY. CO.

Supreme Court of Vermont. Orleans.

March 14, 1902.

Exceptions from Orleans county court; Taft, Judge.

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

Argued before ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

C. A. Cook and Geo. E. Young, for plaintiff.

C. A. Hight, L. L. Hight, and R. N. Chamberlin, for defendant.

STAFFORD, J. The plaintiff is seeking to recover for injuries sustained by him, as an employe of the defendant, in consequence of the latter's running a car of its own, equipped with a side ladder instead of a ladder upon the end or inside, in contravention of the statute, and having a post dangerously near its track; whereby the plaintiff, using the ladder to mount the car while in motion, was knocked off by the post, and his foot run over by the wheels.

Statement of Facts and History of the Case. The Grand Trunk Railway runs through the village of Island Pond, where it has a large yard, 14 or 15 tracks wide. The tracks extend east and west. On the south side are freight sheds,—a long line of buildings. On the north side is a hotel. Connecting the sides is an overhead bridge, built by the railway company, some 20 feet above the tracks, and supported by 8 or 10 standards about 20 feet apart, each standard consisting of 2 posts strengthened by a brace, and framed at the bottom into a timber resting upon the ground. The passenger station is near the middle of the yard, dividing it into what are called the east end and the west end. The bridge is 25 or 30 feet west of the station. All but two of the tracks are on the north side of the station; those two are on the south side, and are, first from the station, the main line, and second, the freight-shed track. A platform extends around the station and under the bridge. The freight-shed track is 50 or 60 rods long, and at each end joins the mainline, having probably two-thirds of its length west of the bridge; and it runs so near one of the standards that the north rail is only 41 inches from it; so that, when a freight car is on the track opposite the standard, the distance between the car and the post is only 20 Inches. The accident occurred on the 14th of October, 1898, and the foregoing description is to be understood as of that date. The location of the standards had not been changed since the bridge was built, in 1899, but the location of the freight-shed track had been changed, bringing it thus near the post, instead of, as before, at some considerable distance from it. This change had been made about a year before the accident. No other standard or post in the yard stood so near the track by six inches, and most of them were still farther away. Kilpatrick had worked for the company in this yard nearly all the time for 18 years. From May until the September before his accident In October, he had been yard master. Now he was acting as switchman, and it was his duty to assist in shunting cars, making up trains, and letting them in and out of the yard under direction of the foreman. The defendant introduced no testimony, and the only witnesses, aside from the physician, were the engineer of the train upon which the plaintiff was riding when the accident occurred and the plaintiff himself. The engineer did not see what happened, so that the case rested substantially upon the plaintiff's own story. There had been a previous trial resulting in a verdict and judgment for the plaintiff, which this court reversed on the ground that the plaintiff was guilty of contributory negligence as matter of law. Kilpatrick v. Railway Co., 72 Vt. 263, 47 Atl. 827, 82 Am. St. Rep. 939. Upon the second trial, the evidence was so far varied that the question was submitted to the jury. The plaintiff's story was that about 1 o'clock in the morning he started from a point near the west end of the yard, where he had been at work, and came to the passenger station on his way to do other work at the east end. As he came upon the platform, he saw approaching from the east, on the freight-shed track, a train of four box cars and one empty coal car, pushed by a backing engine attached to the east end. He knew that there were cars already standing on this same track farther west, beyond the bridge, and considering it his duty to be there when the train should come up to them, and thinking there was not time for him to walk or run ahead in the dark, and in order to be where he might the better signal to the engineer with the lantern he was carrying, and where he might put on the brake if necessary to prevent a too violent collision which might break the drawbars, or even throw the standing cars foul upon the main line, where they would be in the way of trains soon to he let in, he made up his mind to mount the first car. This was a Grand Trunk box car, and was equipped with a side ladder at the west end on the north side, the side towards him, and had no ladder on the end. So, having his left arm through the bail of the lantern and both hands free, he caught hold of a round of the ladder with his right hand, and stepped with his left foot upon the truck box under the car, the box that covers the end of the axle. His foot slipped from the box to the ground, and, running along a few steps beside the car, he tried again in the same way, and succeeded, drawing himself up so far on the ladder that his feet were on the bottom round and his head at the top of the car, when he struck against the post of the standard, and was knocked off; and the wheels passed over his foot, inflicting the injury for which he claimed to recover. As to the speed of the train he had said on the first trial that he could not tell accurately, but, upon being pressed for an opinion, had estimated it at eight or nine miles an hour. Upon this trial he reduced his estimate to three or four miles, the rate at which the engineer, also, testified the train was running.

The Statutes Relied Upon. V. S. §§ 3886, 3887, declare that no railroad corporation shall run a car of its own with a ladder or steps to the top of the same on the side, but that the same shall be on the end or inside of the car; and that it shall forfeit $50 for each day's neglect to comply with this requirement, and be liable for damages and injuries to passengers and employes re-suiting from such neglect. This car was one of the defendant's own, and was being run in violation of the statute. The trial court correctly held that its action in that respect was negligence in law. Such was the holding of this court where the case was here the first time.

The Questions Raised Below. At the close of the plaintiff's testimony, the defendant moved for a verdict on two grounds: (1) That the plaintiff was guilty of contributory negligence; (2) that he had assumed the risk, The court said it would hold pro forma that he did not assume the risk; that the defendant was guilty of negligence as matter of laws that it thought the only question, aside from damages, was that of contributory negligence,—which it thought should be submitted to the jury. To the ruling that the defendant was negligent as matter of law, and the ruling that the plaintiff did not assume the risk, the defendant excepted, and requested the court to hold, as matter of law, that the side ladder was not the proximate cause of the injury. It did not ask to have it left to the jury as a question of fact, and evidently did not desire that; for, although it excepted to the refusal of the court to hold that the side ladder was not the proximate cause, it did not except to its omission to submit the question to the jury, nor to the charge itself, wherein it was assumed that the injury resulted from the presence of the side ladder. In view of the attitude taken, the court bad a right to understand that the defendant stood upon its point of law alone. So we think it is not open to it now to argue that the question was one of fact, and ought to have been submitted to the jury.

Proximate Cause. In refusing to hold, as matter of law, that the side ladder was not the proximate cause, there was no error. That certainly could not be ruled as matter of law. Leaving out of view the question of contributory negligence, there were three essential factors in the accident: The post, the ladder, and the man. It was necessary that the post should be near enough to strike the man when on the ladder; it was necessary that the man should be on the ladder to be struck; it was necessary that the ladder should be on the side instead of the end, to bring the man near enough the post to be struck. If either one had been omitted, the accident would not have occurred. If the post was too near by any one's fault, it was the fault of the defendant; but leave that question out, and say the post was not near enough to be dangerous except to one on a side ladder; then we have only two factors left: (1) A ladder on the side instead of the end; (2) a man on the ladder. Can one be said to be any more proximate to the injury than the other? 'Are they not mutual, contemporaneous? As said before in this case (72 Vt. 260, 47 Atl. 828, 82 Am. St Rep. 939), "In the use of the words proximate cause, negligence occurring at the time of the injury is meant." Did not the negligence of the company in having a side ladder occur at the time of the injury as much as the presence of the man upon the ladder".' Well then, if both causes were equally proximate, and one cause existed through the negligence of the defendant and the other existed without the fault of the plaintiff, and while and because he was in the performance of his duty towards the defendant is not the defendant liable? And if the plaintiff was not guilty of contributory negligence, but was rightfully and prudently where he was, what question was there for the jury, of proximate or remote cause?...