Marion Howe, By Next Friend v. Central Vermont Railway Co

• Decision Date: 24 May 1917
• Citation: Marion Howe, By Next Friend v. Central Vermont Railway Co, 101 A. 45, 91 Vt. 485 (Vt. 1917)
• Parties: MARION HOWE, BY NEXT FRIEND v. CENTRAL VERMONT RAILWAY CO
• Court: Vermont Supreme Court

101 A. 45

91 Vt. 485

MARION HOWE, BY NEXT FRIEND v. CENTRAL VERMONT RAILWAY CO

Supreme Court of Vermont

May 24, 1917

October Term, 1916.

CASE FOR NEGLIGENCE. Plea the general issue. Trial by jury at April Term, Windham County, Miles, J., presiding. At the close of all the evidence the defendant moved for a directed verdict, which motion was overruled, and defendant given an exception. General verdict for plaintiff. Both parties excepted. The opinion states the case.

Judgment reversed and cause remanded, without costs to either party in this Court.

John W. Redmond and Charles F. Black for the defendant.

Herbert G. Barber and Frank E. Barber for the plaintiff.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

WATSON

In this action the plaintiff sues by her next friend, to recover for injuries received by her on September 10, 1915, at the defendant's grade crossing known as "Parks Siding" in the town of Townshend, this State, by reason of the defendant's locomotive colliding with the automobile in which she was riding. The automobile came upon the crossing from the east, going towards the west. The plaintiff was then two years and seven months of age, and lived with her parents in the town of Newfane, about two miles from the home of her grandparents, Herbert G. Howe and his wife, Nora L. Howe, who lived in the town of Brookline. On the morning in question, pursuant to an arrangement previously made between the grandfather and the plaintiff's parents, the plaintiff went with her parents to the house of her grandfather, to go to the Londonderry fair in the latter's automobile. The party, consisting of the grandfather, the grandmother, their son Glen Howe, the plaintiff, her father and her mother, started in the automobile at seven o'clock and twenty minutes, for Londonderry. The grandfather was the driver of the car, and with him sat Glen. The grandmother was seated on the extreme right of the rear seat, holding the plaintiff in her lap. The plaintiff's mother and her father sat at the left of the grandmother, in the order named. Seven miles from the place of starting, was the crossing in question, with which the plaintiff's grandfather and her father were well acquainted, and had often been over it in both directions, in an automobile. They both knew the time the morning train for Londonderry was due at the crossing, and understood it was due to leave West Townshend, about two miles north of the crossing, at 7:45 a. m. The accident occurred a little before eight o'clock. The driver threw the car into low gear about opposite the crossing-signal post, post which was about fifty or sixty feet from the east rail, and kept it in low gear thereafter. While the car was in low gear, it proceeded at a speed of not more than four to six miles an hour, with no attempt to increase the speed before it was struck by the locomotive. When the car was almost over the crossing, it was struck by the west end of the breast beam of the locomotive six inches from the rear of the body of the car, throwing the occupants out, injuring the plaintiff and wrecking the car.

The declaration states two grounds of negligence upon which the action is founded: (1) That the defendant did not give the required warning signal when its train was approaching the crossing in question, either by ringing the bell or sounding the whistle; and (2) That defendant allowed trees, shrubs and bushes to grow and remain within the boundaries of its right of way within a distance of eighty rods in each direction from said crossing, the plaintiff's view, as the automobile neared the crossing, being thereby obstructed.

At the close of the evidence, the defendant moved for a directed verdict on several grounds which may be condensed and adequately stated for the purpose of the case, as follows: (1) There is no evidence in the case tending to show any negligence on the part of the defendant that was the proximate cause of the injury; (2) On all the evidence, the proximate cause of the injury complained of was the negligence of the driver of the automobile, or of the father of the plaintiff, or of the mother of the plaintiff, or of some or all of them; (3) On all the evidence, the driver of the automobile, and the father of the plaintiff, were jointly or severally guilty of contributory negligence, which contributory negligence is imputable to the plaintiff; (4) On all the evidence, the occupants of the automobile were engaged in a common enterprise, and therefore the contributory negligence of the driver is imputable to the plaintiff; and (5) There is no evidence tending to show any actionable negligence on the part of the defendant because of the growth of shrubbery or trees upon its right of way. To the overruling of the motion, defendant excepted.

The action, as to the second ground of negligence stated above, was treated by the court and by counsel on both sides throughout the trial below, as based upon Section 4478 of the Public Statutes, which reads: "A person or corporation operating a railroad in this state shall cause all trees, shrubs and bushes to be cut within the surveyed boundaries of their lands, for a distance of eighty rods in each direction from all public grade crossings." By Section 4479, "If said person or corporation neglects or refuses to remove the trees, shrubs and bushes, as required by the preceding section, after sixty days' notice in writing, given by the selectmen of the town in which such trees, shrubs and bushes are located, and cause the same to be cut in the month of October each year thereafter, said person or corporation shall be liable for all damages occasioned thereby." The law of these two sections was enacted in sections 1 and 2 of No. 93, Acts of 1904, and relate to the same subject-matter. It is a prerequisite to liability under it that notice be given as specified in Section 4479. The evidence did not show, and it is not claimed, that any such notice was ever given to the defendant. Therefore the action cannot be maintained on the basis of such statutory negligence. Although this is not determinative of the motion for a directed verdict, there being questions to be considered thereon in connection with the other alleged ground of defendant's negligence, yet it follows that the exceptions to the submission to the jury of the question of defendant's liability for failure to keep the shrubbery cut within the limits of its roadway, must be sustained; as must also the exception to the rendering of judgment against the defendant on the special finding of the jury that the shrubbery in said roadway was the proximate cause of the injury.

There was the negative testimony of several of plaintiff's witnesses to the effect that they did not hear any bell ring nor whistle blow before the accident; while the testimony of other witnesses was that they heard the whistle blow back some distance from the crossing in question, which, fairly construed, may be said to warrant a finding that the whistle was blown in the vicinity of eighty rods back from the crossing. There was no evidence that the bell was rung at that place or between there and the crossing. For the purposes of the case on the motion for a verdict, we consider the evidence as showing that the bell was not rung at all when the train was approaching the crossing, and that the whistle was blown eighty rods from the crossing, but not afterwards and before the accident.

It is said on the part of the defendant that thus blowing the whistle was a compliance with the provisions of Section 4431 of [91 Vt. 491] the Public Statutes, requiring signals when a train is approaching a public highway crossing at grade while the plaintiff contends that this is not so, for that to constitute a compliance with the statute by blowing the whistle, the...