Manley v. Del. & H. Canal Co.

• Citation: 69 Vt. 101,37 A. 279
• Court: United States State Supreme Court of Vermont
• Decision Date: 31 October 1896
• Parties: MANLEY v. DELAWARE & H. CANAL CO.

37 A. 279

69 Vt. 101

MANLEY

v. DELAWARE & H. CANAL CO.

Supreme Court of Vermont. Rutland.

Oct. Term, 1896.

Exceptions from Rutland county court; Taft, Judge.

Action by Mary Manley, by next friend, against the Delaware & Hudson Canal Company, to recover for personal injuries. Plaintiff had judgment and defendant excepts. Affirmed.

Wm. H. Preston and Joel C. Baker, for plaintiff.

Butler & Maloney, for defendant.

ROWELL, J. The defendant moved for a verdict, for that there was no testimony tending to show negligence on its part, and for that the testimony disclosed contributory negligence on the part of Higgins, with whom the plaintiff was riding at the time of her injury, and whose negligence, the defendant claimed, was imputable to her.

The motion was properly overruled as to the first ground, for, although all of the defendant's testimony and a large part of the plaintiff's tended to show that the whistle was blown and the bell rung seasonably and sufficiently, yet some of the plaintiff's tended to show the contrary, which made the question of the defendant's negligence for the jury.

We also think that the motion was properly overruled as to the second ground. For some little distance south of where the highway turns to cross the railroad, to a point 32 feet east of the center of the track at the crossing, a train cannot be seen approaching from the south. But at that point the track can be seen in that direction a distance of 503 feet. As you approach the crossing, going west, it is seen less and less, for it curves in the rock cut, the west side of which obstructs the view more and more as you advance. Higgins had a very gentle horse, which was walking slowly. Some of the testimony tended to show that the train was running rapidly, and that the whistle was not blown nor the bell rung until it was in dangerous proximity to the crossing. The defendant claims that, if Higgins had looked, he must have seen the train; and if he did look, and undertook to cross in front of it, he was negligent; and, if he did not look and listen, he was equally negligent. But the jury has found that he could not have prevented the accident if he had looked and listened. It cannot be told with any certainty whether the train was in sight or not when he reached the 32-foot point. The jury seems to have thought that it was not in sight, for if it had been, and he had seen it, he could have avoided the accident by stopping, for his horse was exceedingly reliable, to his knowledge. The defendant undertakes to demonstrate by figures that it was in sight. But the data for such demonstration are too uncertain to be reliable. The case, on the testimony, was fairly for the jury on the question of contributory negligence.

The defendant requested the court to charge that it was Higgins' duty, on approaching the crossing, to stop, look, and listen for approaching trains, and that if by doing so he could have avoided the accident, and he...