Marjorie Bates v. Rutland Railroad Co.

• Decision Date: 02 May 1933
• Parties: MARJORIE BATES v. RUTLAND RAILROAD COMPANY
• Court: Vermont Supreme Court

165 A. 923

105 Vt. 394

MARJORIE BATES v. RUTLAND RAILROAD COMPANY

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Railroads---Negligence---Burden on Plaintiff as to Showing Freedom from Contributory Negligence---When Question of Contributory Negligence One of Law and When for Jury---Conflicting Evidence for Jury---Circumstances Justifying Imputation of Contributory Negligence---Admissions---Duty of Driver of Automobile Approaching Railroad Grade Crossing---Facts with Which Driver of Automobile Approaching Railroad Grade Crossing Is Chargeable---Effect of Failure To Exercise Requisite Vigilance---Duty Where Vision of Driver Approaching Grade Railroad Crossing Is Obstructed---Insufficiency of Evidence To Justify Holding Driver of Automobile Approaching Grade Crossing To Be Guilty of Contributory Negligence---Effect of Failure of Railroad To Sound Statutory Warnings on Question of Plaintiff's Contributory Negligence---Imputed Negligence Not To Be Based on Circumstances Calculated To Deceive Prudent Man---"Puffing" of Locomotive and "Rumble" of Train on Question of Whether Motorist Heard Approaching Train---Jury Question---Trial---Exception to Charge---Law of Case---"Last Clear Chance" Doctrine---What Trainmen May Assume as to Motorist Approaching Grade Crossing as Train Is Nearing Crossing---Insufficiency of Facts To Justify Submission of Last Clear Chance Issue to Jury.

1. In ACTION OF TORT against railroad for negligence in grade-crossing accident, plaintiff has burden of showing freedom from contributory negligence.

2. In such action, question of plaintiff's contributory negligence is not one of law for court unless it appears from undisputed facts, from plaintiff's own evidence, that plaintiff was not in exercise of care of careful and prudent person under like circumstances.

3. If evidence taken in light most favorable to plaintiff is of such quantity and character that reasonable men might draw different conclusions respecting plaintiff's fault, issue of contributory negligence is for jury.

4. In action of tort against railroad for negligence in grade-crossing accident, though testimony of plaintiff was confusing in its contradictions and inconsistencies, such evidence was for jury to weigh and consider on question of plaintiff's contributory negligence.

5. In such action, contributory negligence would be imputed to plaintiff, if she continued looking in direction from which train was approaching until she reached spur track, about 24 feet distant from track on which train was approaching, where train was in view, and would have been seen by her, if so looking, in ample time for her to have stopped automobile in which she was riding and to have avoided accident.

6. In such action, plaintiff's statements in her testimony as to direction in which she looked for train at certain point held informal admissions, which, unlike judicial admissions were not conclusively controlling against her, as matter of law.

7. Driver of automobile approaching railroad grade crossing has duty to look and listen for approaching trains, and, if necessary to listen effectually, to stop to listen.

8. Driver of automobile approaching railroad grade crossing is required to continue to look and listen until last moment when discovery of train would avail for driver's protection.

9. Driver of automobile approaching railroad grade crossing held chargeable with such knowledge of approach of train as she might have obtained by such vigilant use of her senses as careful and prudent person would make in like circumstances.

10. Driver of automobile approaching railroad grade crossing, who by vigilant use of sight and hearing might have discovered and avoided danger, and who omits such vigilance, is guilty of contributory negligence.

11. Where vision of driver of automobile approaching railroad grade crossing is obstructed, driver must be especially vigilant as regards hearing.

12. Driver of automobile approaching railroad grade crossing held not guilty of contributory negligence as matter of law in looking to west and not to east, from which latter direction train was approaching, during space of time required for her to travel from point 42 feet south of main track to point 17 feet south of it.

13. In action of tort against railroad for negligence in grade-crossing accident, although failure of defendant to sound whistle or bell did not excuse plaintiff from exercise of due care, held under circumstances of case, that plaintiff had right to rely somewhat upon statutory signals being given, and failure to sound such warnings was circumstance to be considered in determining whether plaintiff exercised requisite care or not.

14. Negligence cannot be imputed to one who is deceived by circumstances calculated to mislead a prudent person.

15. That train when approaching crossing was working steam which made a noise called "puffing," and movement over rails made noise called "rumble," while strong circumstantial evidence tending to show that motorist approaching railroad grade crossing did not listen, or if listening, heard train, Supreme Court cannot say that they are so controlling that it was physical impossibility for motorist to be listening and not hear train, even though her hearing was not shown to be impaired.

16. In action of tort against railroad company for negligence in grade-crossing accident, whether plaintiff driving automobile approaching such crossing made such vigilant use of sense of hearing as prudent person would have made under like circumstances, and whether she did in fact hear train in time to avoid accident, held for jury.

17. Whether driver of automobile approaching railroad grade crossing should stop to look and listen is usually jury question.

18. In action of tort against railroad company for negligence in grade-crossing accident, evidence as to obstructed conditions at crossing held to make question for jury whether plaintiff driving automobile approaching crossing should have stopped to look and listen.

19. Where exceptions did not cover substance of charge given on particular issue, but only whether record justified submission of issue to jury, Supreme Court must accept rule adopted as law of case.

20. In action of tort for negligence, there can be no recovery under last clear chance doctrine, if plaintiff's negligence is concurrent and proximately cooperates in producing injury.

21. Last clear chance doctrine presupposes a perilous situation, created or existing through negligence of both plaintiff and defendant, but assumes there was time after such negligence has occurred when defendant could, and plaintiff could not, by use of means available, avert accident.

22. Trainmen seeing motorist approaching track, held to have had right to assume for a time that she would stop and not drive onto crossing in front of train.

23. In action of tort against railroad company for negligence in grade-crossing accident, held that, under circumstances of case, court erred in submitting last clear chance issue to jury.

ACTION OF TORT against railroad company for negligence in grade crossing accident. Plea, general denial. Trial by jury at the June Term, 1932, Bennington County, Sherburne, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Edwin W. Lawrence and Frank C. Archibald for the defendant.

E. J. Hall and Fenton, Wing, Morse & Jeffords for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The plaintiff brings this action to recover damages for injuries which she sustained in a railroad crossing accident. The accident occurred on October 13, 1931, at about 1.30 P.M., when an automobile driven by the plaintiff collided with an engine drawing a freight train of eighteen cars in a westerly direction over defendant's main line. It is not questioned that the verdict establishes negligence on the part of the defendant for failure to give the usual crossing signals with bell or whistle. The defendant by appropriate exceptions presents for review the question of the plaintiff's contributory negligence as a matter of law. In the consideration of this question, we are to be guided and governed by principles well established in our cases. The plaintiff has the burden of showing freedom from contributory negligence (Shumm's Admx. v. Rutland Railroad Co., 81 Vt. 186, 192, 69 A. 945), but the question is not one of law for the court unless it appears from undisputed facts, from the plaintiff's own evidence, that she was not in the exercise of that degree of care which a careful and prudent person would exercise in circumstances of like exposure and danger. Carter v. Central Vermont Railroad Co., 72 Vt. 190, 192, 47 A. 797. If the evidence, taken in the light most favorable to the plaintiff, is of such quantity and character that reasonable minds might draw different conclusions respecting the plaintiff's fault, then the issue was properly submitted to the jury. Wellman, Admr. v. Wales, 98 Vt. 437, 448, 129 A. 317; Carter v. Central Vermont R. R. Co., supra; Sherwin v. Rutland R. R. Co., 74 Vt. 1, 4, 51 A. 1089; Shields et al. v. Vermont Mutual Fire Insurance Company, 102 Vt. 224, 237, 147 A. 352.

The accident occurred at the Sunderland crossing, where the highway leading from East Arlington to Manchester crosses three railroad tracks of the defendant at grade. The record treats of the highway at this crossing as running north and south, and the tracks as extending east toward Manchester and west toward Bennington. The main line is the most northerly track; next to it is a passing track, and the one farthest south is a spur track. The...