Lisle M. Carpenter v. Central Vermont Railway Co.
| Decision Date | 14 January 1916 |
| Citation | 96 A. 373,90 Vt. 35 |
| Parties | LISLE M. CARPENTER v. CENTRAL VERMONT RAILWAY COMPANY |
| Court | Vermont Supreme Court |
Special Term at Brattleboro, February, 1914.
CASE for negligence. Pleas, the general issue and a special plea in bar. Trial by jury at the April Term, 1912, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment reversed and cause remanded.
Harold E. Whitney, Hermon E. Eddy and Clarke C. Fitts for the defendant.
A E. Cudworth, R. C. Bacon, L. R. Pierce and E. W Gibson for the plaintiff.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, AND TAYLOR, JJ.
This is an action on the case for personal injuries received by the plaintiff while at work for the defendant as a brakeman at South Londonderry on the West River Railroad, a railroad extending from South Londonderry to Brattleboro and owned and operated by the defendant. The general issue and a special plea called a plea in bar were filed. Issue was joined, trial by jury was had, and verdict and judgment were for the plaintiff. The defendant brings a bill of exceptions.
The accident took place January 8, 1909, and the action is at common law. The defendant's second plea raised the question that the plaintiff's right of action, if any he had, was under the Federal Employers' Liability Act.
The plaintiff was employed as a brakeman on trains 53 and 52 of the West River Railroad. So far as the engine and a combination freight and passenger car are concerned the trains are the same. The engine draws a train known as 53 from Brattleboro to South Londonderry, where cars and freight are left, and a train is there made up of such cars, in addition to the combination car, as are ready for transportation, and is drawn by the engine from South Londonderry to Brattleboro. On the day in question train 53 consisted of the engine, the combination freight and passenger car, and two freight cars. It was in the course of the movements, in the yard at South Londonderry, made in the course of making up the return train 52, that the plaintiff was injured.
The jury by their verdict necessarily found that the plaintiff was not at the time of his injury employed and engaged in interstate commerce, and as there was much evidence offered on that point by the defendant and excluded by the court under objection and exception by the defendant, it is necessary for us to consider whether or not there was prejudicial error in the rulings excluding such evidence, for, if there was, the findings of the jury must go for nothing.
The defendant claimed that the accident happened during the switching movements at Londonderry, incidental to the taking into the train of a car loaded with bark to be taken without the state, that the plaintiff was engaged in these operations, and so that the plaintiff's right was to be determined under the Federal Employers' Liability Act. Pennsylvania Co. v. Donat, 239 U.S. 50, 60 L.Ed. 139, 36 S.Ct. 4; New York &c. R. R. Co. v. Carr, 238 U.S. 260, 262, 59 L.Ed. 1298, 35 S.Ct. 780.
The plaintiff claimed and introduced some evidence tending to show that the carload of bark in question was not shipped on the day of the accident which as we have said was January 8.
The bill of the bark was dated January 7; but the assistant station agent, who made it out, testified that for some reason the bark did not leave until the eighth of January. His testimony was that he knew that the car containing the bark went out on the eighth, because the car record which he kept, and which it was his duty to keep, showed such to be...
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