McDuffee's Adm'x v. Boston & M. R. R

• Decision Date: 04 March 1908
• Court: Vermont Supreme Court
• Parties: McDUFFEE'S ADM'X v. BOSTON & M. R. R.

69 A. 124

81 Vt. 52

McDUFFEE'S ADM'X

v. BOSTON & M. R. R.

Supreme Court of Vermont. Caledonia.

March 4, 1908.

Exceptions from Caledonia County Court; Loveland Munson, Judge.

Action for negligent death by Delia M. McDuffee, administratrix of the estate of Homer A. McDuffee, against the Boston & Maine Railroad. Judgment for plaintiff, and defendant excepted. Reversed and remanded.

The plaintiff is the surviving mother of Homer A. McDuffee, and the administratrix of his estate. He left neither father, nor wife, nor issue. The declaration consisted of counts seeking to recover, for the benefit of said estate, the damages sustained by the intestate on account of his alleged injuries from the date of the accident to his decease, and other counts seeking to recover for plaintiff's own benefit, as next of kin, the damages sustained by her because of the intestate's death. Verdict for the plaintiff for $3,500, $500 for the benefit of said estate, and $3,000 for the plaintiff, as next of kin.

It appeared that from about March 1, 1903, till October 10, 1903, the intestate was employed as freight brakeman on "the railroad," and that he was born June 8, 1882. It appeared that a point north of the railroad station at Newport, Vt., on the east side of the main line railroad track, and 10 or 12 feet therefrom, stood a water tank, with spout thereto attached. Plaintiff's evidence tended to show that on Saturday, October 10, 1903, about 12:10 p. m., the intestate, looking southerly, was riding on the top of a freight car moving northerly by said station at the speed of about two or three miles an hour; that, when passing said water tank, the back of his head came in contact with said water spout, throwing him "forward" upon the roof of the car, his cap falling to the ground; that he arose, descended from the car, picked up his cap, remounted the car, and continued his duties as freight brakeman that afternoon on a train running from Newport to Lyndonville, where he resided, but that on that afternoon, on the trip to Lyndonville, he told a trainman that he "felt rotten," his "head ached," and that on his return home that afternoon he complained to plaintiff of "feeling bad," of "pain in his side," "his side felt queer, funny, funny feeling, in his side," and showed her "a lump" on the back of his head; that he then looked pale, ate little supper, bathed his head with witch hazel, and after supper changed his clothes, went out, and did not return till 10 o'clock that evening; that he arose about 3:30 o'clock Sunday morning, ate his breakfast, and made his run that day from Lyndonville to Newport and return, performing all his duties as freight brakeman, and returning to Lyndonville about 3 o'clock in the afternoon; that after his return that afternoon he complained to plaintiff of having pain in his side, ate a light supper went out about 6 o'clock, returned about 8:30 that evening and went to bed, asking plaintiff to call him at 4:20 the next morning to go out on a stock train as freight brakeman, which she did and he came down stairs Monday morning with a lamp, staggered to a chair, saying that he was sick and wanted to vomit, whereupon a physician was called, who saw him about 5 o'clock that morning; that the intestate was sick to his stomach, and had pain in his left side from the time he came down stairs Monday morning till he died about 3 o'clock that afternoon. Plaintiff's evidence further tended to show that at the time of the accident freight cars projected about two feet outside each rail of the track; that the intestate was then standing erect on the top of one of the cars of the train, and just a little away from the center board toward the side nearest the water tank, signaling the train and facing south when he passed the tank; that said car was a Grand Trunk car, and about a foot higher than an ordinary car; that the outer end of the water spout, when not in use, hung over the east rail of the main line of the Boston & Maine Railroad. It appeared that the water tank and water spout were visible and could have been plainly seen by the intestate for a considerable distance, if he had looked in that direction. The exceptions state that: "No evidence was offered tending to show that the injury to Mr. McDuffee's head was in itself of a serious character or in any way caused or contributed to his death. Plaintiff's evidence tended to show that a fall such as plaintiff received at Newport might possibly produce a rupture of the spleen, but that such a result was not a probable nor a natural result; and the doctors produced by the plaintiff all testified that they should not expect a rupture of the spleen from such an accident. And some of plaintiff's evidence tended further to show that a person having a ruptured spleen would not be able to work after the accident producing the rupture." Plaintiff's evidence tended to show that an autopsy was performed on the intestate's body in the afternoon of the day following his death; that there was a little abrasion of one of his knees; that there was a severe contusion on the back of his head; that his spleen was ruptured near its apex; that the intestate died from hemorrhage of the spleen caused by a rupture thereof; that the rupture was caused by some external violence in the spleenic region, which is back of the lower ribs on the left side; that a rupture of the spleen is rare, but sometimes occurs from slight causes; that the water tank and spout were in perfect condition and repair at the time of the accident; that there is a running board along the center of the top of freight cars, about two feet wide, for the convenience of employés having occasion to pass over the top of such cars. Defendant claimed that there was no evidence in the case tending to show that it owned or operated the tank and water spout in question.

Subject to defendant's exception and the objection that "there is no evidence that such an accident occurred to this young man," Dr. Allen, produced by plaintiff, was allowed to testify as follows: "Q. Doctor, assuming that a young man of 20 received a sufficient injury to make a slight rupture of the pulp of the spleen, but not sufficient at the time to rupture the outer covering, what would be the indication of that rupture? A. I should expect it might have very little at the time, might not show, ever show any great disturbance, probably would not be very severe in effect."

Defendant introduced no evidence, but rested at the close of plaintiff's case, and then moved that a verdict be directed in its favor for that: First, there is no evidence of negligence on the part of the defendant; second, there is no evidence that the deceased was in the exercise of due care; third, that the evidence shows that deceased was guilty of contributory negligence, fourth, that the danger, if any, from the water spout, was open and visible, and was a risk incident to the employment; fifth, that the danger, if any, from the water spout, was a risk assumed by the deceased; sixth, there is no evidence in the case that will support a finding that death resulted from the alleged accident at the water spout; seventh, there is no evidence that the death resulted from the alleged accident at the water spout; eighth, if deceased was injured by the water spout, it was the fault of a co-employé in leaving the spout lower than it should be when not in use; ninth, because there is no evidence that the Boston & Maine Railroad constructed, owned, or operated the water tank or water spout referred to in this case at the time of the injury to the deceased; tenth, there is no evidence that the deceased was in the discharge of any duty as an employs of the Boston & Maine Railroad at the time he was injured; eleventh, that on all the evidence in the case the plaintiff is not entitled to recover. This motion was overruled, to which defendant excepted, and thereupon moved that plaintiff be compelled to elect on which set of counts she would stand, whether on the counts declaring for pain, suffering, and damage to the intestate, or on the counts declaring for damages to plaintiff, as next of kin, resulting from the intestate's death. That motion was also overruled, to which defendant excepted.

Defendant requested the court to instruct the jury as follows:

(1) The defendant had a right to locate its water tank conveniently near its track, even if such location involved some risk to its employés.

(2) Unless the evidence satisfied you by a fair balance of proof that the water tank and spout were so placed as to be unreasonably dangerous to the employés, and that some arrangement which was free from all risk to the employés was feasible and proper for the convenient and practical operation of the road, then the defendant was guilty of no negligence, and your verdict should be for the defendant.

(3) It appears that there was a running board in the center on the top of the car Mr. McDuffee was on at the time of the alleged accident, placed there for the safety and con venience of employés required to be upon the top of the car. If you find from all the testimony that a person on the running board of the car would be safe and in no danger of being hit by the spout when on the running board, the defendant has furnished a reasonably safe place.

(4) It appears that the running boards are placed upon the cars for the safety and convenience of the employés required to be on the tops of the cars, and that a man on the running board of the car could not be bit by this water spout when it was "way up." In this regard the defendant has performed its full duty in furnishing a reasonably safe place for the deceased to work.

(5) The burden is upon the plaintiff to show that the deceased was in the discharge of some duty required of him by the defendant at the time of the alleged accident at Newport, and you cannot assume that he was, without evidence showing that fact.

(6) There is no evidence...