Latremouille v. Bennington & R. Ry. Co.
| Decision Date | 12 September 1891 |
| Citation | 22 A. 656,63 Vt. 336 |
| Parties | MARY LATREMOUILLE, ADMR., v. BENNINGTON & RUTLAND RY. CO |
| Court | Vermont Supreme Court |
JANUARY TERM, 1891
remanded for new trial.
J.C Baker, for the defendant.
This is an action to recover damages, suffered by the widow and next kin of Solomon Latremouille resulting from his death, claimed to have been caused by the neglect of the defendant, in whose employ he was at the time of the accident causing his death. The neglect complained of was that it did not furnish the deceased a safe place to work, and did not employ and furnish competent and sufficient fellow servants to assist him in that work. At the time of his death, the deceased was, and had been, a car inspector and repairer for the defendant in and about the railroad yard at Rutland, for fourteen or fifteen years. This yard was occupied by three Railroad Companies: the defendant, the Central Vermont Co., and the Deleware and Hudson Canal Co. Each company had tracks in the yard, which it controlled and generally occupied. They all ran trains into, and made up trains in the yard. The Central Vermont Company controlled and did the switching of cars from one track to another, for the entire yard, the other companies contributing towards that expense. Each company employed one or more car inspector, and repairer. The duty of the deceased in such employment, was to inspect all cars coming into the yard and destined to go over the defendant's railroad, and to mark for repairs such cars as did not comply with the Master Car Builder's Rules, by which all railroad companies are governed. He was furnished with a set of these rules. He was to superintend and see to the repairs of all cars marked by him, or by any of the other car inspectors and repairers in that yard, which it was the duty of the defendant to repair. If the needed repair was such as could be properly made where the car was standing, or on the defendant's track, he made it. If it was not of that character, he marked the car to be taken to the shop to have the repair made. Cars marked to be taken to the shop for repairs, or to the defendant's track, were taken there by the switching force. He exercised his own discretion and judgment in marking cars with reference to whether they were to be taken to the defendant's shops, or track, to be repaired, or whether the repair needed was of such a character that he could properly and safely make it on the track where the car was standing. The defendant had a track, upon which he could order a car needing repairs, placed, where the repairs could be made by himself. This track was only open at one end, and was used to store cars. No trains ran over it. On the day of the accident, a car belonging to the defendant to repair standing on the track of the Central Vt. R. R. Co. and destined over the railroad of the Delaware & Hudson C. Co., was marked by the inspector of the latter company as needing repair, because of a defective draw-bar. There was at least one car north of the car needing repair, and the defective draw-bar was at the south end of the car. There were one or more cars standing on the track south of this car, so that a train coming from the south, could not draw through the yard on this track. The Central Vt. R. R. Co. had another track, on which trains coming from the south generally could pass through the yard, but on the day of the accident it was being repaired and could not be used. Trains could be set upon the track where this car stood, from either end. A train coming over the Central Vermont Railroad from the south could draw up through the station, and back down from the north on this track. If deceased determined to make the repair needed himself, he could do it where the car stood, or order the car placed upon the track of the defendant.
If the required repair was such that the deceased needed a helper, either to watch for a coming or moving train, or to assist him, he called upon the foreman of the carpenter shop, and he sent him the help asked for. The deceased undertook to repair this car having the defective draw-bar while standing on the track of the Central Vt. R. R. Co. He procured the things necessary and called upon the foreman of the carpenter shop for a helper. The foreman sent to help him a man by the name of Sullivan, who had, in one capacity or another, worked in the yard with the deceased about twenty years.
So far as appears the deceased made no call for any more or different help, nor did he object to Sullivan as a helper. The deceased, with Sullivan as a helper, started from the carpenter shop to go and make repairs on this car. Some of the witnesses saw them on their way to the car. The only witness who describes how the accident happened, is Sullivan. He says that he and deceased went to the south end of this car, standing on the track of the Central Vt. R. R. Co., and that the deceased looked along one side of the cars, and he, the other, and neither saw anything of any train or engine moving, and then the deceased directed him to take the draw-bar and hold it in place, while the deceased went under the car to put in a pin which he had made; that to hold the draw-bar in place he stood in the centre of the track near the end of the car. It is evident that he was facing toward the north, but was so near to the car that he could not see the train backing down on the track from the north.
While the deceased was under the car endeavoring to put in the pin, a train coming from the south over the Central Vt. railroad, ran up through the station and backed down, unseen and unheard from the north upon the track where the deceased was under the car, and ran the car over him, causing the injuries from which he died. Some of the plaintiff's witnesses testify that they did not see Sullivan there when there attention was called to the fact that the deceased was under the car injured. But if Sullivan was not present, he had either been sent away by the deceased, of which there is no evidence, or voluntarily absented himself. If the latter be true, the deceased must have either gone under the car to repair it, or remained under it, without any assistant. It cannot be presumed that he did not know of Sullivan's absence, if he was absent. The defendant's uncontradicted testimony tended to show, that its master mechanic, had, only a short time before the accident, told the deceased that if he found it necessary to go under a car to make the needed repairs, he must have the switching force set it upon the track of the defendant, used for that purpose, and for storing cars, not open for the trains generally, but open only at one end, and for its own cars.
The plaintiff contends that this testimony is debatable, as improbable, although uncontradicted. The forgoing is the substance of the testimony which was introduced before the jury. When the plaintiff rested, and at the close of the testimony, the defendant requested the court to direct a verdict to be returned in its favor. It excepted to the refusal of the court to direct a verdict on either motion. The first motion and exception were waived, by proceeding with the trial after the ruling of the court. If it would have availed itself of this refusal, the defendant should also have rested. Hence we have to consider only the exception taken to the refusal of the court at the close of the evidence. On this contention the parties do not substantially differ in respect to the law governing the subject. Such a motion is like a demurrer to the whole evidence, on the ground of its insufficiency to warrant a verdict for the plaintiff if one should be found. The motion could not be entertained, if, as the case stood, there was any evidence tending fairly and reasonably to support the claim of the plaintiff. If the verdict was to be determined by an inference, to be made by the jury from facts, any of which more or less in dispute, the disputed fact, or facts, were to be determined, and the inference made by the jury.
So long as any fact from which such inference is to be made, is in doubt or dispute, the inference is dependent, partly upon the fact to be determined by the jury. It is not wholly a question of law. It only becomes a question of law purely, when conceding the facts to be undisputed, or to be such as the testimony most favorable to the plaintiff has any reasonable tendency to establish, they will not warrant a legal inference, nor if the inference be of a fact have a reasonable tendency to support such inference of fact, necessary to give the plaintiff a verdict. As said by Collamer, J. in Lindsay v. Lindsay, 11 Vt. 621. "If there be any conflict in the evidence, or if it only shows facts from which the main fact is to be presumed or inferred by the jury, the case should be left to the jury, under proper legal instructions." Wilder v. Wheeldon, 56 Vt. 344; Noyes & Smalley v. Rockwood & Spooner, 56 Vt. 647; St. Johnsbury v. Thompson, 59 Vt. 300.
The plaintiff contends that this is a question of negligence, and that negligence is a fact inferable, or determinable...
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