Peter Leclair v. Montpelier And Wells River Railroad

• Decision Date: 23 January 1919
• Citation: 106 A. 587,93 Vt. 92
• Parties: PETER LECLAIR v. MONTPELIER AND WELLS RIVER RAILROAD
• Court: Vermont Supreme Court

106 A. 587

93 Vt. 92

PETER LECLAIR v. MONTPELIER AND WELLS RIVER RAILROAD

Supreme Court of Vermont

January 23, 1919

May Term, 1918.

ACTION OF TORT to recover for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1917, Washington County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

H C. Shurtleff and W. B. C. Stickney for the defendant.

Richard A. Hoar, Alland G. Fay and J. Ward Carver for the plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

TAYLOR

This is a tort action for personal injuries occasioned by the negligence of the defendant. The trial was by jury, with verdict and judgment for the plaintiff. The case is here on defendant's exceptions.

The defendant conceded liability, and the only questions litigated related to the damages. In an opening statement to the jury plaintiff's counsel detailed the circumstances of the accident, and the defendant conceded that it took place substantially in the manner stated. We glean therefrom some of the facts necessary to a proper understanding of the questions to be reviewed. The plaintiff is a blacksmith, and at the time of his injury was at work in his shop situated near the main line of railroad in the city of Barre operated by the defendant. Adjoining the plaintiff's shop at the south was a grain and flour mill, located on a spur track which terminated near the south side of plaintiff's shop. At the time in question defendant's servants were engaged in doing shifting in that vicinity, and had just placed a car loaded with grain on the mill track. For some reason not now material the switch connecting the spur with the main line was not thrown after the engine returned from placing the car. It went southerly some distance, and coupled onto quite a heavy train of cars that had previously been left on the main line, and then started down through the yard, gaining momentum as the train proceeded. The train took the open switch at the spur, struck the car recently left there, and shunted it off the open end of the spur with sufficient force to carry it entirely through plaintiff's shop tearing up by the roots and carrying along with it a tree about a foot in diameter, and practically demolishing the shop. Fortunately the plaintiff was not in the direct line of the course taken by the car. He was at that instant at work on the running gear of a heavy lumber wagon, resting on some sawhorses near the center of the shop. He was carried forward to a point near the north side of the shop, and buried under the rubbish to a depth of several feet. He was so entangled in the wreckage that a jack had to be used to raise the materials that pinned him down.

Plaintiff claimed to have been injured about his legs, back, head, and neck, so that from the time of the accident he had been unable to do any work, and that his injuries were of a permanent nature which would probably prevent him from ever resuming work at his trade. On the other hand, the defendant claimed, and its evidence tended to show, that plaintiff's injuries were mainly confined to cuts and bruises on his legs, that they were not of a serious character, and that he should have been able to perform his usual work in from four to six weeks from the time of the accident. The jury assessed the damages at $ 5,046.08.

Of the twelve exceptions that are briefed all but three involve the question whether connection between the accident and the particular injury complained of had been shown, and are so related that the length of this opinion can be abridged by considering them together. The accident occurred on April 28, 1917, and the trial was begun on October 30th following.

Dr. Tyndall, a physician practicing his profession in Montpelier, testified that early in the summer after the accident the plaintiff came to his office, where he took some X-ray pictures of his knees and made a further physical examination. Witness was then asked what he found, and, subject to the objection that there was no connecting evidence, was permitted to testify under exception that he found a very sensitive and tender spot over the lumbar region of the spine, of which the plaintiff made much complaint, and which might have been the result of a blow.

Dr. Boucher, another physician located in Montpelier, testified without objection in substance that he visited the plaintiff professionally at his home in Barre several times in August and September, 1917; that on those occasions he examined the plaintiff, and found that he had some trouble with his intestines, some pain in that region, which he thought was caused by adhesions; that he also found that he had some trouble with "the iliac joint of the sacrum, toward the left side," which he thought was due to a sprain, a strain; that he measured plaintiff's legs and found that the left was half an inch longer than the right; that plaintiff complained of pain in his back over the sacro-iliac joint and in the abdomen; that there was persistent soreness in his back; that he treated the plaintiff for the adhesions, applied adhesive plaster to give the back complete rest, and prescribed a liniment; and that with the condition of the plaintiff's back as he found it, it was his opinion that he would not be able to work at his trade. Witness was then asked whether from his examination of the trouble which he had described (referring to the trouble with his back) plaintiff would at any time thereafter be able to resume his occupation of shoeing horses. It was objected that whether that was admissible or not depended upon whether the injury was connected with the accident. Plaintiff's counsel replied that they expected to make the connection, and under exception the witness was permitted to answer that he was in doubt if plaintiff would be able to do so, because of the condition of his back.

After the arguments were closed, and when the court was about to charge the jury, the defendant moved to strike out the evidence: (1) Regarding adhesions; (2) relating to bowel trouble; (3) regarding the lengthening of plaintiff's leg, on the ground that the several troubles referred to had not been connected with the accident, and excepted to the action of the court in overruling the motions.

The defendant excepted to the failure of the court to charge: (1) That there was no evidence tending to show any connection between the accident and the adhesions in the intestines testified to; (2) to the action of the court in leaving that question to the jury; (3) to the failure of the court to charge that there was no evidence tending to show a connection between the accident and any bowel trouble which plaintiff claimed to have had, as shown by the evidence; and (4) to the failure of the court to charge that there was no evidence tending to show a connection between the accident and any lengthening of plaintiff's leg.

Concerning all of these exceptions the defendant's claim is that nothing but expert medical testimony would serve to connect the several troubles with the accident, that such testimony is entirely lacking, and that therefore it was error to permit the jury to consider such troubles in arriving at plaintiff's damages. Ryder v. Vermont Last Block Co., 91 Vt. 158, 99 A. 733, is relied upon in support of this proposition. But the question in that case was wholly unlike the questions presented here. There the question was as to the probable progress and duration of the plaintiff's troubles where the evidence disclosed no more than a serious injury resulting from a blow on the head. It was held to be error to argue and to permit the jury, unaided by expert medical testimony, to conclude that the accident had destroyed the earning capacity of the plaintiff for the remainder of his life. Speaking of the injury, we said that it was not visible, but was obscure, was something about which, in respect to its continuance and impairment of ability in the long future, a layman could form no well-grounded opinion, could do no more than indulge in the merest speculation, and that expert medical testimony could alone lay a foundation for the claim made by counsel and submitted to the jury. Here the question is whether there was any evidence that would warrant the jury in finding that a present condition shown by the evidence to exist was the result of the accident. To establish the basis of such an inference it would not necessarily require the testimony of medical witnesses that the particular trouble was attributable to the accident. However, the causal connection might in some cases be so obscure as to require such testimony to remove the inference from the realm of speculation.

Plaintiff interposes the...