Place v. Grand Trunk Ry. Co.

• Decision Date: 09 August 1907
• Citation: 67 A. 545,80 Vt. 196
• Court: Vermont Supreme Court
• Parties: PLACE v. GRAND TRUNK RY. CO.

67 A. 545

80 Vt. 196

PLACE

v. GRAND TRUNK RY. CO.

Supreme Court of Vermont. Special Term, St. Johnsbury.

Aug. 9, 1907.

Exceptions from Essex County Court; Tames M. Tyler, Judge.

Action by Stephen S. Place against the Grand Trunk Railway Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON and WATSON, JJ., and HALL, Superior Judge.

Herbert W. Blake, for plaintiff. L. L. Hight and Harry B. Amey, for defendant.

HALL, Superior Judge. The plaintiff at some time prior to the accident in question had worked for the defendant shoveling snow 10 1/2 days, and at another time 3 or 4 days. This was all the experience be bad in railroading. He bad usually been employed in a mill or as a laborer. On the 26th of January, 1906, he was employed by the defendant, and worked shoveling coal, most of the time, from cars into the coal chute, until February 2d, when he was ordered to go with one Boin to shovel part of a car of coal into the boiler house. He had been there for that purpose once before. The coal chute and boiler house were about 125 feet apart in the same yard. In that part of the yard there were six tracks and four switches: No. 1, the northerly track or siding, led on a curve to the boiler house; Nos. 2, 3, and 4 led to an ash pit between the coal chute and boiler house; No. 5 led to the side of the coal chute where engines were coaled; and No. 6, the southerly track, up an inclined plane to where coal cars were unloaded into the chute. Between the main track and tracks Nos. 1 and 2 there were three switches, numbered 1, 2, and 3, respectively. The distance from 1 to 2 was about 152 feet; from 2 to 3, 98 feet; and 60 feet from No. 3 was located split switch No. 4, controlling the entrance upon tracks 1 and 2. Nearly opposite, and about 10 feet from it, was split switch No. 5, controlling the entrance upon tracks 3 and 4. The targets upon these switches were upon the northerly side. The distance from split switch No. 4 to the foot of the incline leading up to the coal chute was about 40 or 50 feet. Engines did not run up the incline. Cars of coal were drawn up by means of a cable, and there was only a narrow space on either side of the cars when on the trestle. It appeared that coal cars were about 35 feet long, that the platform was about 3 feet from the ground, and that the sides and ends were about 3 feet above the platform or floor of the car. On either end was a platform about 12 inches wide. The usual method of getting onto a car was by stepping on the brakebeam, or upon a plank placed on the brakebeam, taking hold of the brakerod and climbing up on the end of the car. The plaintiff's evidence tended to show that it was the only way to get on. Track No. 1 was not only used for drawing coal to the boiler house, but as a storage track for cars of coal, and on the day of the accident there was part of a car of coal on the south side of the boiler house, that had been there a day or two, and easterly, and 3 or 4 feet from it, were five cars loaded with coal, some of which had been placed there that morning about 8 o'clock and before plaintiff and Boin arrived. The space between the car opposite the boiler house and the next one easterly was left, so that the men could pass through and get into the door on the east end of the boiler house.

On the morning of the accident, about 8:30, plaintiff and Boin went to the boiler house, as directed, to unload the car that was partly full, standing beside the boiler house. They went through the space between the cars, through the east door, and opened the windows into which the coal was to be shoveled. They then returned to the car, and got up over the end, as they had done at the coal chute. Boin shoveled from the east end, and plaintiff from the west end. It took about two hours to unload the car. When unloaded, Boin got down over the east end. Plaintiff went to the east end, and set down his pick and shovel, and got over onto the narrow platform (about 12 inches wide) on the end of the car. He then took out his pick and shovel and threw them on the ground, and took hold of the brake handle, a little south of the center of the car, with his right hand, and the handle (grab iron) near the corner of the car (plaintiff testified that it was on the end of the car) with the other hand, facing towards the west, and attempted to get off on the south side. He put his right foot upon the drawbar, so as to throw his body forward and enable him to reach the brakebeam with his left foot The brakebeam was about 1 1/2 feet down, or half way to the ground, and 8 or 10 inches under the car. While in this position the collision hereinafter described occurred, and plaintiff was caught. His right foot and leg were injured, necessitating amputation between the ankle and knee, and his left foot was injured, necessitating the amputation of part of the foot. Plaintiff testified that he did not see any stirrup, and did not know that there was one on the car; that he did not know that the drawbar was constructed with a covered spring, that let it back when the couplers came together; that he did not know what the deadwood was, and had never received any instructions or been cautioned to look out for danger; that he never saw any cars put on the boiler track, and did not know there was any danger. White, plaintiff's foreman, who directed him and Boin to go and unload the car, was on the engine at the time of the collision. He testified that he knew plaintiff and Boin were unloading the car, and had seen them one or two minutes before; that if it was a dangerous place he would look after them, but he did not see any danger at the time and did not think it would happen.

The engine causing the collision was in charge of one Boulett, engine hostler for defendant, who was backing up from a point on track No. 5, intending to run the engine on track No. 2 to the ash pit to have its fires cleaned. He was on the south side, looking down towards the hind end, and did not look to see how the switch target stood—"forgot it," he testified—and did not know where he was going until he was about three feet from the easterly ear on the boiler house track. He then reversed the engine, but that did not prevent the collision which caught plaintiff. When the engine stopped it was a little more than its length west of switch No. 4. The yard foreman, who had worked for defendant about 14 years and set the cars in on the boiler house track that morning, testified that he set switch No. 4 for the ash pit track when they came out. The evidence of the plaintiff tended to show that the employés of the defendant, who had a right to change the switch, had not done so between the time when the cars were placed there, and the switch set for the ash pit, and the time of the accident. The switch was what is known as a "Ramapo," and the defendant's evidence tended to show that it was as good as any made. There had been a lock on that switch until about 18 months before, when it was discontinued. Locks were used on some of the switches in the yard, and had been in constant use by the defendant. It appeared that there was nothing impracticable in using a lock on that switch. Plaintiff claimed that it might have been changed by a stranger, not employéd by the defendant, and that it was negligence to leave it without a lock.

Witness Gleason testified that the day following the accident, or the next day after, he saw the switchmen with a split switch rail out near the foot of the incline that had a bent point. Witness Dealand, an employé of the defendant, who did all kinds of work in the yard, testified that some time in February—he could not say whether before or after the accident—he worked on the switches, and there was a point bent on one where the split switches were together. The plaintiff's evidence tended to show that the bent end of a split switch rail at No. 4, if set for the ash pit, might throw the engine on to the boiler house track. Boulett had worked for the defendant nine years, the last five as engine hostler, and his work was perfectly satisfactory to his superiors, who regarded him qualified for his position; but he had never been examined nor furnished with a copy of defendant's rules, which provided, among other things, that enginemen "are required to observe the position of all switches, and must know (so far as it is possible for them to do so) that such switches are right before passing over them"; also that "they must always keep a sharp lookout ahead, noting carefully the position of switches, semaphores, and other signals, and also look back frequently to see that the train is intact." He had seen the rules and been instructed to some extent by a former hostler. He had been quite deaf since he was 13, and his hearing was growing no better. He had never been examined. Mr. Cobb, locomotive foreman for defendant, who examined engineers and firemen for defendant, testified that such examination covered, among other things, seeing, hearing, and writing; that this was done for the protection of the public and fellow workmen. The plaintiff's evidence tended to show that in passing over a switch there was a peculiar sound called a "click," and claimed that, if Boulett failed to look at the target and could have heard this "click," it would have indicated to him the danger, and prompted quicker action, and avoided the collision. Boulett testified that he knew he was on the switch, but that it was the first time the switch had been turned, and the first time anything had happened. He had several engines in charge, daily, to clean and coal, and was frequently on the tracks in the yard, but only occasionally upon the boiler house track.

The defendant contends that the court helow erred in overruling the motion for a verdict, in admitting certain evidence of witness Kilpatrick, and in failing to give instructions to the jury...