Lynch's Adm'r v. Cent. Vermont Ry. Co.

Citation95 A. 683
PartiesLYNCH'S ADM'R v. CENTRAL VERMONT RY. CO.
Decision Date21 October 1915
CourtUnited States State Supreme Court of Vermont

Exceptions from Franklin County Court; Frank L. Fish, Judge.

Action by Merton J. Lynch's administrator against the Central Vermont Railway Company. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Elmer Johnson, of St. Albans, for plaintiff. C. W. Witters, of St. Albans, Harry B. Amey, of Island Pond, and C. S. Palmer, of Burlington, for defendant.

HASELTON, J. This case having once before been argued, was by the court ordered to be reargued, and at the May term, 1915, a reargument was had before the court as now constituted.

The plaintiff is administrator of the estate of Merton J. Lynch, who was a division road-master of the defendant, and who was killed December 15, 1910, in an accident on the defendant's road. The declaration alleges that the plaintiff's intestate was injured through the negligence of the defendant's servants, and is brought under the federal Employers' Liability Act of 1908, as amended (Act April 5, 1910, c. 143, 36 Stat. 291), to recover for the benefit of the widow and child of the deceased. Trial by jury was had, and verdict and judgment were for the plaintiff. The defendant excepted.

Before any evidence was taken, the defendant filed a motion to dismiss on the ground of the claimed insufficiency of the allegations, and at a later time the motion was renewed. The motion was overruled, and the defendant excepted. The sufficiency of the declaration could not, however, be tested by a motion to dismiss. Alexander v. School District, 62 Vt. 273, 19 Atl. 995; Marsh v. Graves, 68 Vt. 400, 35 Atl. 335; Noyes v. Hyde Park, 73 Vt. 261, 50 Atl. 1068; Clement v. Graham, 78 Vt. 290, 305, 306, 63 Atl. 146, Ann. Cas. 1913E, 1208. This motion, in one of its subdivisions, claimed that the court was without jurisdiction. But the declaration was very clearly under the federal Employers' Liability Act, and the court below had jurisdiction and was bound to take jurisdiction.

Mr. Lynch was killed at West Hartford by the wheels of a car that constituted a part of a freight train running on the day in question from St. Albans to White River Junction. One of the allegations of the declaration is that in moving this train the defendant was engaged in interstate commerce. To the proof of this necessary allegation the plaintiff addressed himself early in the trial. In the examination of his first witness, who was the conductor of the train, one Culley, the plaintiff drew out from the witness testimony to the effect that he made out a report to the company of each trip made by him, and that he could probably tell by his report as to the trip in question where the cars in the train came from and where they went to. Thereupon the plaintiff gave notice to the defendant to produce the report as to this train, and to produce also any other papers it might have showing where the freight carried by this train came from and where it was destined to. Later the plaintiff called attention to this request, and one of the defendant's attorneys stated that he had made application to Mr. Soule, a superintendent of the defendant, who had said that he had passed the papers in question over to the attorney. The attorney added that, when he went to the office, he could probably find them; that they were papers he got with reference to the cars on that train; that he remembered they were in his file; did not know how they got out of it; and that he would use all efforts to find them. Mr. Soule, above referred to, a superintendent of the defendant, in charge of several districts, including the place where Mr. Lynch was killed, was afterwards called as a witness by the plaintiff, and testified that the company kept records that would show the contents of that train, and that he had access to such records. Later he testified that the records had been searched, and that the paper wanted could not be found, but that there was a memorandum indicating that it had been abstracted for some purpose. Still later the plaintiff called to the witness stand the attorney for the defendant, who had made a statement regarding this matter, and he, being interrogated, said he was not sure about the record, but that some record was taken from the transportation department to his office; that he was inclined to think it showed what was in this train; that he was not absolutely certain that it would show whether the traffic was interstate or intrastate; that he had never looked at the document, as the case had been put over to a later time; that he had not considered the importance of the matter; that every effort was being made to find the missing document; and that, if it was found before the case was concluded, it would be produced. The document was not produced. So, as the evidence stood, a paper apparently decisive of one question in the case was lost, and no one admitted knowledge of its contents.

At the close of the evidence the defendant moved for the direction of a verdict in its favor, and one of the grounds of the motion was in substance, that there was no evidence tending to show that the train in question was engaged in interstate commerce. This claim is very strenuously relied on in argument before this court. But, although the defendant had lost or mislaid the record, which it was its duty to produce if it could, the plaintiff, as the situation had been developing had been endeavoring to show by circumstantial evidence that the train carried freight that in the character of its shipment was interstate.

The conductor testified that the train consisted of 52 cars; that freight of all kinds and from all points was in the cars; that the train was an extra train made up at St. Albans; that none of the cars were empty; that no cars were left anywhere between St. Albans and White River Junction; that the train was called a dairy train; that it carried some dairy products, butter and eggs; that he could not tell where the freight came from that was carried that day; that he did not recollect for certain whether or not there were cars of beef that came from the West; that he could not say for certain whether any of these 52 cars taken to White River Junction were bound for points out of the state; that he could not say where the produce carried that day came from; that some of the produce comes from the West sometimes, and generally in full cars.

Mr. Soule, the superintendent already referred to, testified that the road did an interstate traffic, and that such traffic constituted a good deal of the tonnage carried. He testified that the company runs local freight trains and through freight trains. A through freight train, he said, is "marshaled" at St. Albans and destined to Burlington, Montpelier, or White River Junction, as the case may be, and handles, as a rule, cars destined to or beyond those points; that, if the company had several cars of dairy products that came into St. Albans from the west destined for Boston and Providence, they would be taken from St. Albans to White River Junction by being marshaled in some extra southbound train. He twice asserted that the company never "started" a train from St. Albans with 52 cars, distinguishing apparently between starting a train and "marshaling" cars in a train.

We take judicial notice of the geography of the state, and we are fully satisfied that the evidence, a part of which we have referred to, amply warranted the inference that this train of over 50 loaded cars, taken unaltered from St Albans across the state to White River Junction, carried, in part at least, freight which was in process of interstate transportation.

If the train was transporting any goods shipped from without the state to points within the state, or any goods destined to points without the state, whether taken aboard within or without the state, it was engaged in interstate commerce. The defendant claims that from the evidence with regard to this long train of loaded cars running across the state over a road which was confessedly a highway of interstate commerce, it is just as probable that all the freight started from points within the state, and was to be left at points within, as otherwise, that there was no evidence upon which to base a fair and reasonable inference that some of this freight "of all kinds," including dairy products, was matter of interstate commerce. Suppose that the plaintiff had brought his action under our state statute, modeled on Lord Campbell's Act, and the defendant had claimed on the evidence here that there was room for a fair inference that the train was, to some extent at least, engaged in interstate commerce; would the defendant or any one else be satisfied with a ruling that there was nothing for the jury on that question? We think not We dismiss this question without further comment, and without discussing the question of the inferences, if any, permissible from the failure to produce the lost or mislaid documents, or the question of whether the failure to produce was satisfactorily explained. The plaintiff on the trial below stated that he did not charge bad faith in the matter. On the circumstantial evidence introduced it was for the jury to say whether or not the train in question carried articles of commerce which were in course of interstate transportation. North Carolina R. Co. v. Zachary, 232 U. S. 248, 258, 259, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Barney's Adm'x v. Quaker Oats Co., 85 Vt. 372, 82 Atl. 113.

Another ground of the motion for a verdict in favor of the defendant was that there was no evidence that Mr. Lynch at the time in question was engaged in interstate commerce. The evidence was to the effect that it was his duty to look after the track in question, to see that it was kept in a safe condition for travel; that in the course of his employment he...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT