Niles v. Cent. Vermont Ry. Co.

• Decision Date: 17 January 1914
• Citation: 87 Vt. 356,89 A. 629
• Parties: NILES v. CENTRAL VERMONT RY. CO.
• Court: Vermont Supreme Court

89 A. 629

87 Vt. 356

NILES

v. CENTRAL VERMONT RY. CO.

Supreme Court of Vermont. Franklin.

Jan. 17, 1914.

[Copyrighted material omitted.]

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by Calvin B. Niles against the Central Vermont Railway Company. Judgment for plaintiff, and defendant excepts. Judgment affirmed.

M. H. Alexander, of St. Albans, for plaintiff. C. W. Witters, of St Albans, Harry B. Amey, of Island Pond, and C. S. Palmer, of Burlington, for defendant.

POWERS, C. J. On the night of January 25, 1912, the defendant undertook to run three extras over its road from Essex Junction south. The one first to leave that station was No. 401, an interstate freight train, drawn by an engine of that number. The one next to leave was No. 416, a faster freight train, drawn by an engine of that number. The one last to leave was No. 52, an engine running light These trains were operated under a combined order, which required them to run as three extras from Essex Junction to Montpelier Junction, meeting two north-bound extras at Waterbury. This order was made complete for 401 at 10:54 p. m., but that train did not actually leave Essex Junction yard until 11:35 or 11:40. It was made complete for 416 at 11:50 p. m., but the train did not leave until about 12:35 a. m., January 26th. It was made complete for 52 at 12:10 a. m., and this engine left some time after 416. After the order was made complete as to 401, and this train was thus authorized to leave as soon as it was ready to go, it drew down to the south part of the yard and took in some cars, did some shifting, and made up its train. This was done on various sidings, and when the work was completed, the train was switched onto a siding known as the "back track," to be out of the way of No. 6, the south-bound sleeper, which was then so nearly due that 401 could not safely leave. When this had been done, the conductor, Brann, went back to the station to see if No. 6 was on time, and soon returned to his train with an order giving him two hours on the sleeper. Thereupon, 401 pulled out onto the main line and proceeded south. The night was clear, brightly moonlit, and extremely cold. The train bore the usual tail lights. None of the stations which it passed were open, and there was no way to establish communication with the dispatcher. The plaintiff was the flagman of 401. It was his duty to comply with the requirements of the defendant's rules to protect his train from 416, which he knew was to follow. He rode in the van attached to the rear of his train, and did nothing to protect it, except to get outside when the train passed a station and look back to see if 416 was in sight, until, at a point something over a mile south of Bolton station, and when he thought the train would strike an upgrade there and be thus slowed down, he dropped off a lighted fusee. This would burn red for five minutes and then yellow for five minutes, and by the rules would, while burning red, require a following train to stop until it was burned out, and while burning yellow, would require a following train to proceed with caution. No. 401 was a heavy train, but was making a fair run of it, and when the fusee was dropped was going about 15 miles an hour. It ran on a half a mile or more from where the fusee was dropped when 416, running from 20 to 25 miles an hour, came crashing into it and caused the injuries for which the plaintiff sues. The collision occurred about two miles south of Bolton and at 12:35 a. m. The engineer of 416 ran right over the burning fusee dropped by the plaintiff, but did not see it, because his engine leaked steam so badly that he could see nothing ahead of him. The accident happened on a long straight track of over two miles, and but for the leaking steam the engineer of 416 could have seen the tail lights of 401 for a long distance, which of itself would have given him ample time to bring his train under control. Howard Bronson was flagman of 416 and was riding in the van of his train. When he felt the application of the air brakes, which was but an instant before the crash, with commendable promptness, we may say in passing, leaped from his train and ran back to stop 52. He seized the fusee dropped by the plaintiff, then burning yellow and dying down, showing that it had been burning nearly 10 minutes, and without difficulty, stopped the approaching engine.

From the foregoing statement of facts, which the evidence fairly and reasonably tended to establish, it is apparent that this case is very similar to White's Adm'x v. Central Vermont Ry. Co., 89 Atl. 618. Many of the questions here presented are identical with those disposed of in that case. There is no occasion to discuss these, and we pass them over without comment The pleadings here differ from those in the White Case in this respect only: The declaration here is admittedly at common law. The exception to the overruling of the defendant's demurrer to the plaintiff's replication, was, in the case before us, ordered to lie. Since this declaration is at common law and since the remedy under the federal act is exclusive (Mondou v. New York, N. H., & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. [N. S.] 44), the plaintiff's replication was a typical departure (Allen v. Tuscarora Valley R. Co., 229 Pa. 97 78 Atl. 34, 30 L. R. A. [N. S.] 1090, 140 Am. St. Rep. 714; Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983).

But as is shown in the White Case, advantage of this defect must be taken by demurrer, or it is waived, and the fact that the defendant's exception was ordered to lie makes no difference. German v. Bennington & Rutland R. Co., 71 Vt. 70, 42 Atl. 972.

F. E. Bronson was the engineer of 401 at the time of the accident. He had run 416 five or six months before, and was allowed to testify that it did not then leak steam, it was objected that this evidence was too remote, and that it had no tendency to show the condition of the engine at the time of the accident But the question of remoteness was, as usual, a question for the trial court (Belka v. Allen, 82 Vt. 456, 74 Atl. 91), and, while the evidence did not tend to show the condition of the engine at the time in question, it did tend to show that that condition was abnormal, and so it was admissible.

E. R. Percival was the engineer of 52. From St Albans to Essex Junction his engine had been coupled ahead of 416. Subject to exception, he was allowed to testify to the condition of 416 in respect of leaking steam during that run. This was objected to on the ground that it was too remote and had no tendency to prove the issue. But the condition of this engine in the respect named at the time of the collision was of vital consequence, and to establish this, evidence of its condition while on the way from St. Albans to Essex Junction was admissible. The other point of the objection is not briefed. This witness rode back to St Albans that night on the train that carried the plaintiff there, and was in the van with him a part of the time. He was allowed to testify that the plaintiff's condition on the trip was "not one of great comfort." The defendant's objection to this was that there was nothing in the declaration entitling the plaintiff to recover for pain and suffering. It had appeared that the plaintiff had suffered a bad compound fracture of both bones of the leg, and other injuries, and the fact testified to was so perfectly obvious that the testimony could not have harmed the defendant.

Moreover, one need not allege more than he is required to prove, and he need not prove what everybody knows; and, since everybody knows that broken bones cause pain, evidence of that fact was admissible. Bolton v. Ovitt, 80 Vt. 362, 67 Atl. 881.

This witness was also allowed to testify that the headlight on 416 was, when he last saw it at Essex Junction that night very badly smoked so that it "was just a red glow in the chimney." Various objections to this were made below, but none of these are among the reasons urged against it in the brief, so we pass them over.

He also testified that he understood that the Grand Trunk Railway was changing from compound to simple engines to save expense of repairs. Counsel for the defendant offered to show by him that he had no knowledge that such engines were being discarded by any one, either on account of steam leaking or on account of expense in making repairs. This was excluded and the defendant excepted. The exception is without merit. The witness did not profess to know anything about it, but gave his understanding of the matter and the source thereof. Indeed, counsel ...