Martin Flint's Adm'r v. Central Vermont Railway Co.
| Decision Date | 02 July 1909 |
| Citation | 73 A. 590,82 Vt. 269 |
| Parties | MARTIN FLINT'S ADM'R v. CENTRAL VERMONT RAILWAY COMPANY |
| Court | Vermont Supreme Court |
October Term, 1906.
CASE for negligence. Plea, the general issue. Trial by jury at the March Term, 1906, Chittenden County, Miles, J., presiding. At the close of all the evidence the defendant moved that a verdict be directed in its favor, on the ground that the evidence did not tend to show negligence on defendant's part, but showed that the deceased was guilty of contributory negligence as matter of law. Motion overruled, to which the defendant excepted. Thereupon, subject to defendant's exception, the court directed a verdict for the plaintiff for $ 650, it being agreed that the plaintiff was entitled to recover that amount, if entitled to recover at all. The opinion states the case.
Judgment reversed, and judgment for the defendant to recover its costs.
C W. Witters, C. S. Palmer and R. E. Brown for the defendant.
Present ROWELL, C. J., TYLER, MUNSON, WATSON, HASELTON, and POWERS JJ.
WATSON
At the close of the plaintiff's evidence, the defendant moved for a verdict on the grounds (1) that there was no evidence tending to show negligence on the part of the defendant, and (2) that the undisputed and unconflicting evidence showed contributory negligence on the part of the intestate. The case is here on exception to the overruling of this motion. The facts herein stated appear from or are supported by the evidence.
The intestate, a man about seventy-two years of age, while driving across defendants' railroad track at a highway crossing at West Berlin in the afternoon of May 18, 1905, was struck by defendants' engine drawing the mail train, so-called, northbound, and instantly killed. The train was running at about schedule rate of speed, forty-five miles an hour. The depot at that place is a building about twenty-five feet in length and a little less than that in width. It stands sixty-two feet south of the crossing where the intestate was killed, wholly on the east side of the main track and about nine feet from the east rail. There is a platform toward the track extending north and south beyond the building, the whole length of which is one hundred thirty-four feet. The northerly end of this platform comes to the highway. West Berlin is not a regular stopping place for any passenger trains. It is a flag station for some trains, but the one in question never stops there except to leave passengers coming from beyond Springfield, which happens only two or three times a year, and perhaps not at all for a year,--"once in a great while."
By section 3921 of Vermont Statutes, "If a person having control of a detached engine or an engine with a passenger train of cars attached, runs such engine or such passenger train into or through a passenger depot at a speed exceeding four miles an hour, he shall be fined ten dollars." Counsel for plaintiff contend that as the train at the time in question was being run at a greater rate of speed than is permitted by this statute, if not negligence as a matter of law it must at least be a circumstance which constitutes some evidence of negligence on the part of the defendant, citing Kilpatrick v. Grand Trunk Railway Co., 72 Vt. 263, 47 A. 827, 82 Am. St. Rep. 939; same case, 74 Vt. 288, 52 A. 531, 93 Am. St. Rep. 887; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679; and other cases. Except that this section of the statute is applicable no claim is made that the speed of the train was excessive.
The law of section 3921 was first enacted in 1860. At that time there were in this State and hitherto have been passenger depots so constructed as to cover over the main tracks of the railroad, into and through which trains running on such tracks must pass. We think that statute was intended to apply only to such depots. It is difficult to see how the words "into or through" as there used can have reference to passenger depots of any other construction. "Into" is there used in the sense of inside of; within. It expresses entrance, or a passing from the outside of a thing to its interior parts. The word "through" means from end to end, or from side to side of; into or out of at the opposite, or at another point; between the sides or walls of; within; as to pass through a door, or to go through an avenue. See Webster's International Dictionary.
The intestate was a peddler driving a single horse hitched to an open wagon with a small box containing his goods fitted into the rear end of the wagon body. East of the crossing in question, the highway over which he was travelling is a gradual ascent to the railroad. At a distance of three hundred twenty-eight feet east of the east rail, a person travelling over the highway toward the crossing has a plain view of the railroad track from the depot southerly some fifteen hundred or sixteen hundred feet. The track there is elevated considerably above the level of the land and is in plain view for the whole distance to the crossing except as the vision is obstructed by the depot. Going westerly from a point in the middle of the road forty-one feet east of the east rail to the crossing, the view of the track southerly is thus obstructed until within twenty-four feet of the east rail. There the track can be seen past the westerly end of the building for a distance of one hundred fifteen feet; at twenty feet from the east rail, the track is visible for a...
To continue reading
Request your trial