Labelle v. Cent. Vt. R. Co.
| Decision Date | 03 October 1913 |
| Parties | LABELLE v. CENTRAL VERMONT R. CO. |
| Court | Vermont Supreme Court |
Exceptions from Windsor County Court; Frank L. Fish, Judge.
Action by Leo Labelle against the Central Vermont Railway Company. Judgment for the defendant upon a directed verdict in its favor, and plaintiff excepts. Affirmed.
Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
Hollis & Murchie, of Concord, for plaintiff.
C. W. Witters, of St. Albans, and Clarke C. Fitts and Hermon E. Eddy, both of Brattleboro, for defendant.
This is an action to recover damages for personal injuries received by the plaintiff, a traveler on the public highway, when crossing defendant's track at Moore's Crossing, so-called, in the town of Hartford, this state. At the close of the evidence defendant moved for a verdict on several grounds specified, among which was that the plaintiff had not shown himself free from contributory negligence at the time of his injury. The plaintiff claimed the right to go to the jury on the ground of "last clear chance." The court denied the plaintiff's claim in this regard and directed a verdict against him on the ground of contributory negligence. To each of which rulings an exception was saved.
The defendant's railroad runs northerly and southerly. Going northerly toward the crossing where the accident happened, the public highway near by parallels the railroad for a long distance before turning westerly over it at this crossing. This portion of the highway is some feet lower than the railroad track and is on an ascending grade for 150 feet or more before getting to the crossing. From where the highway begins to turn westerly, it runs somewhat diagonally with the railroad track up to the crossing. Nearing the crossing from the same direction, there stood on the right-hand side of the highway a crossing sign post, 8x8 inches in size and 19.9 feet from the easterly rail of the railroad track at the crossing. Standing 11 feet northerly of this post and 19.3 feet from the easterly rail was a telegraph pole. Southerly of the crossing sign post and 33.2 feet from the easterly rail stood a telephone pole. These telegraph and telephone poles were about 10 inches in diameter. There was also a fence extending from the cattle guard just northerly of the crossing back (easterly) to the fence along the line of the railroad right of way. The westerly end of this fence was 6.6 feet from the easterly rail. The fence was made of posts and boards nailed thereon. The boards were narrow, and the spaces between them were as wide as the boards, if not wider. The fence was 4 boards high, except that between the second and the third posts from the track it was but 3 boards high. Some 300 feet northerly from the crossing is a knoll on the same side of the track 8.5 feet high above the center of the track at the crossing. From the center of the crossing in the same direction the track is straight for a distance of 2,363 feet; then it curves westerly.
The plaintiff when injured was 60 years old, health good, hearing good, eyesight good. He had before then passed over the crossing where the accident occurred several hundred times and was entirely familiar with the crossing and its surroundings, including the railroad both northerly and southerly from that point. In the afternoon of the day of his injury he was passing over the highway northerly toward the crossing, driving a pair of horses hitched to a common dump cart, such as farmers use. The horses were 12 or 13 years old and could be managed by him perfectly well. The top of the dump cart was set back so the forward wheels could cramp in making a turn. There was an iron seat, like those on mowing machines, just in front of the box, resting on the tongue which connected the forward axle. This seat was just far enough from the body so one could sit on the seat without being hit when the body was tipped up. The front wheels were about three feet high, and there was no trouble looking over them.
The case stands upon the plaintiff's testimony alone as to what he did when approaching and going upon the crossing. In this respect his testimony was in substance that when back from the crossing some 800 feet or more, being cold, he got off the seat to walk, thereafter walking beside the tongue between the front wheels and the body, so he could drive his horses; that it was then about half past 2 o'clock; that thus walking he was 6 or 7 feet behind the horses' tails and 14 or 15 feet back of their heads; that he knew it was about time for the express train to come along there and so listened, thinking that if he heard the whistle blow he would stop and wait until the train went by; that, not hearing the whistle, he drove along to a point 40 or 50 feet from the easterly rail and then stopped, looked up the track, and listened for the whistle; that, neither seeing nor hearing anything there, he started along, still watching and listening; that after he got by the posts and the fence, and when the horses were on the crossing and he "was just getting on" to the track, he "gave another look" and saw the train coming, "and I slapped up my horses with the reins and holler to go and I was hurrying as quick as I could; I didn't want to get killed and my horses did jump ahead, but they struck my cart and the cart struck me;" that after starting along from where he stopped, as before stated, he did not stop again before going onto the track; that, when looking from the place where he stopped, the knoll bothered him a little, and after that the post was in the way some, and then where he stopped he was lower than the railroad, and as he stood there looking up the track the fence was higher than he was and shut off his view; that after he started up his horses they walked right along as any common walking team would, about 2 1/2 miles an hour; that, as he came up to the crossing and went onto it, he kept his eyes open and looked, but did not hear any whistle blow nor bell ring nor anything whatever of the train; that when he saw the train, should say it was three or four rods away, and does not know whether more than that or not; that, when he went up to and upon the crossing, he was a foot or so in front of the seat, between the tongue and the front wheel, walking close to the tongue; that nothing was over his ears; that the knoll before mentioned is high enough so one cannot see a locomotive over the top of it if the locomotive be back of the knoll, but after one gets a little further one might see a...
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