McGovern v. Smith

• Decision Date: 09 February 1901
• Citation: 50 A. 549,73 Vt. 52
• Parties: McGOVERN v. SMITH et al.
• Court: Vermont Supreme Court

50 A. 549

73 Vt. 52

McGOVERN

v. SMITH et al.

Supreme Court of Vermont. Washington.

Feb. 9, 1901.

Exceptions from Washington county court; Tyler, Judge.

Action by Daniel T. McGovern against E. C. Smith and another, as receivers of the Central Vermont Railroad Company. From a judgment for plaintiff, defendants bring exceptions. Reversed.

The plaintiff was driving on a highway leading from Waterbury to Bolton and was crossing the railroad operated by the defendants, when the sleigh in which he was driving was struck by the locomotive of a freight train and the plaintiff was hurled a considerable distance.

Argued before TAFT, C. J., and MUNSON, START, WATSON, and STAFFORD, JJ.

F. L. Laird and John W. Gordon, for plaintiff.

John H. Senter and Charles M. Wilds, for defendants.

WATSON, J. At the crossing where the accident happened warning boards were up in accordance with the provisions of section 3848, V. S. Other than the ringing of the bell or the blowing of the whistle of the locomotive engine, there was no method of signaling the danger of an approaching train in use at that place. The plaintiff claimed in the trial below that other signals should have been given of the approaching train at the time in question, and that in failing so to do the defendant was guilty of negligence. On this question the plaintiff was permitted to show, subject to defendant's exception, that the defendant had electric signals at certain other specified highway and street crossings on its road. There are no statutory provisions for the use of electric signals at crossings, except in cities and villages, nor there unless ordered by the railroad commissioners under the provisions of section 3851, V. S. It is not necessary to determine whether or not, in the absence of statutory requirements, a railroad company can be said to be negligent in not maintaining electric signals at highway crossings outside of cities and villages; for, assuming, but not deciding, that it can be, the question here involved is simply one of evidence bearing thereon. The vigilance required of the defendant was measured by the care and prudence of a prudent man in like circumstances, and whether it fell short of this requirement, depended upon the circumstances of this particular case. The fact that the defendant maintained electric signals at other specified highway or street crossings had no tendency to show that it was negligent in not maintaining such signals at the crossing in question....