Magcon v. Boston & M. R. Co.

• Decision Date: 29 December 1894
• Citation: 67 Vt. 177,31 A. 156
• Court: Vermont Supreme Court
• Parties: MAGCON v. BOSTON & M. R. CO. et al.

31 A. 156

67 Vt. 177

MAGCON

v. BOSTON & M. R. CO. et al.

Supreme Court of Vermont. Orleans.

Dec. 29, 1894.

Exceptions from Orleans county court; Rowell, Judge.

Action on the case by Orrin Magoon against the Boston & Maine Railroad Company and others, for personal injuries. Judgment for plaintiff, and defendants except. Reversed,

The plaintiff was Injured while attempting to pass over the buffers and drawbars between two freight cars standing upon a highway crossing in the village of Newport He testified that the cars were standing there when he first came in sight of the crossing, on his way down the street; that he stood beside them for some 15 minutes before attempting to pass through; that he saw no employs of the defendant in charge of said cars, and neither saw nor heard any engine, during all the time that he stood there; that both ends of the train, which consisted of some 8 or 10 cars, were visible, and that he could see a considerable distance down the track upon which the cars stood, towards the south, but, owing to a curve, could not see a great way towards the north; that another person passed between the cars, and that he, being desirous to pursue his way, stepped back so that he might have a view of the track to the north as well as the south; that from the position in which he was standing he could see up the track a considerable distance; and that he neither saw nor heard any engine, and thereupon attempted to pass over the drawbars. The remaining facts, and the exceptions taken by the defendant sufficiently appear in the opinion.

C. A. Prouty, for plaintiff.

Dickerman & Young, for defendants.

TYLER, J. This suit was brought to recover damages for injuries sustained by the plaintiff by reason of the alleged negligence of the defendant The plaintiff's evidence tended to show that the defendant was guilty of negligence; that it might have pushed the cars further south, so as to have cleared the crossing, instead of leaving them upon it; that it thereby violated Act No. 39, Laws 1882, and rendered itself liable to a fine of from $5 to $20. It further tended to show that this highway crossing had existed in substantially the same manner for 20 years or more, and that during a considerable part of that time, in going to and from his work, the plaintiff had passed it daily; that he knew that it was within the limits of the Boston & Maine freight-car yard; that freight trains were made up on it; that in passing he frequently found cars upon the crossing, and had to wait for their removal, the time varying from 5 to 25 minutes; that on this occasion 8 or 10 cars stood upon the crossing (3 or 4 south and the others north of it) when he reached it and had stood there, he thought after he came in sight of it about 15 minutes, when he attempted to pass over the couplings; that as he stood beside these cars he could see quite a distance south, and that no other cars stood on that track; that the north end of the obstructing cars cut off his view of the track in that direction; that no engine was attached to these cars, and none was in sight; that before attempting to pass he stepped back from the cars some 15 or 20 feet, to see if an engine was in sight, and saw none; that an engine of the Boston & Maine, with two cars attached in such a way that the cars were between the crossing and the engine, stood north of the crossing, at or near the water tank; that he then stepped forward to the cars, siezed hold of the irons (ladders) on the ends of two cars, and threw his feet upon the heads of the drawbars, but was unable to throw his body up; that he was engaged in a lively struggle for about half a minute, as he estimated the time, when the engine and two cars ran down from the north, and coupled with the obstructing cars, and pushed them south, off the crossing; that in his attempts to raise himself his left foot slipped onto the coupling links so that when the cars came together his foot was crushed between the two drawbar heads; that two or three persons passed between the cars before he made the attempt; that no bell rang and no whistle sounded while he was waiting; that there was no necessity for his crossing before the cars should be removed, other than that he expected his daughter was, as usual, waiting for him, with a carriage, on the east side of the tracks, though she was not in fact waiting. The plaintiff was 65 years old, and weighed from 180 to 190 pounds. It did not appear that any official or employe of the defendant knew that other persons had crossed, or of the plaintiff's attempt. Although, upon the plaintiff's evidence, no employes of the defendant were in charge of the cars, and there were no indications that they were about to move, he must have known that they would soon be moved from the crossing; that, if they stood there as long a time as he thought they had, they were liable to be moved at any moment. It is apparent that the people who had collected at the crossing, on both sides of the tracks, momentarily expected the cars to be moved, as was the custom. Though the plaintiff could see that no engine was attached, he could not assure himself that one was not in position to run down and be attached in a less time than he would require to mount and cross over the couplings. It does not appear that he inquired of any person whether or not the cars were about to move, or that he used any diligence to ascertain, except to step back a few feet, so that he could the better see the track, which he says he could see but a short distance. The engine was in fact close at hand, as the event proved.

It is a general rule that, though the defendant may have been guilty of negligence and of a violation of law, the plaintiff cannot recover if his own negligence contributed to the happening of the accident Beach.

Contrib. Neg. § 64, says: "No failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing upon approaching a railway crossing; and, whenever the due use of either sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad company's failure to perform its duty." This court has repeatedly held that, where a party claims to have suffered damage by the carelessness or negligence of another, it is a rule nearly if not entirely universal that, if the negligence or carelessness of the person injured contributed in any material degree to the production of the injury complained of, he cannot recover; that, if the injury is in whole or in part owing to the plaintiff's want of ordinary care or prudence, he cannot recover. Rob. Dig. p. 480, pi. 14, 15.

The defendant claimed in the court below that the case made by the plaintiff showed him to have been guilty of contributory negligence, so that in law he was not entitled to a verdict. Ordinarily, under the long-settled rule in this state, this is a question of fact, for the jury; and in this case there was no error in the refusal of the court to direct a verdict for the defendant, unless the case fell under the exception to the rule. Rogers v. Town of Swanton, 54 Vt. 585; Fassett v. Town of Roxbury, 55 Vt. 552. The exception to the general rule is clearly stated by Ross, C. J., in Latremouille v. Railway Co., 63 Vt. 336, 22 Atl. 656, as follows: "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." In that case the plaintiff's intestate was a car inspector and repairer of the defendant, and went under a standing car to repair it, knowing that a train was liable at any moment to back down upon it. A train did back down, and he received fatal injuries. Held, that the danger was obvious, and that there could be no recovery. In Worthington v. Railroad Co., 64 Vt. 107, 23 Atl. 590, Rowell, J., stated the rule concisely as follows: "* * * When the standard of negligence is not prescribed, and there is a combination of facts and circumstances relied upon to show negligence, the question becomes one of law only when those facts and circumstances are so decisive one way or the other as to leave no reasonable doubt about it,—no room for opposing Inferences. This is clearly shown by the adjudged cases." In that case the plaintiff, a passenger, was unnecessarily standing on the steps or platform of a rapidly moving train. See Germond's Adm'r v. Railroad Co., 65 Vt. 126, 26 Atl. 401.

It has often been held that it is gross negligence in a traveler to attempt to pass between the cars of a standing trail to which an engine is attached, and which he knows, or reasouably ought to know, is ready to move. This is so laid down in the text-books. In Corcoran v. Railway Co., 105 Mo. 399. 16 S. W. 411, it was held that, although the plaintiff did not know whether an engine was attached to the cars or not, yet as he did know that one ought to have been attached, for the purpose of moving them off the crossing, and that engines were at work in the yard, moving trains and switching cars, it was gross negligence in him to attempt to go upon them. It was said by the court in Railroad Co. v. Houston, 95 U. S. 697, that it was the duty of the plaintiff, when about to cross a railroad track, to make use of his senses, as far as there was opportunity, in order to ascertain if there was danger in crossing; some cases say "vigilant use." In Hudson v. Railroad Co., 101 Mo. 13. 14 S. W. 15, the court held that for a person to climb over stationary cars without looking to see whether or not they were attached to an engine was such gross negligence as precluded a recovery for injuries received in the...