Place v. Grand Trunk Ry. Co. in Canada

• Decision Date: 21 January 1909
• Citation: 71 A. 836,82 Vt. 42
• Court: Vermont Supreme Court
• Parties: PLACE v. GRAND TRUNK RY. CO. IN CANADA.

71 A. 836

82 Vt. 42

PLACE

v. GRAND TRUNK RY. CO. IN CANADA.

Supreme Court of Vermont. Essex.

Jan. 21, 1909.

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

Action by Stephen Place against the Grand Trunk Railway Company in Canada. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

See, also, 80 Vt. 196, 67 Atl. 545.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Herbert W. Blake, for plaintiff.

L. L. Hight and H. B. Amey, for defendant.

TYLER, J. The record shows that 15 exceptions were taken by the defendant to the admission of evidence of which Nos. 3, 9, 10, 14, and 15 are waived. Nos. 1 and 2 are not insisted upon in the brief. Nos. 4, 5, 6, 7, 11, and 12 relate to the switch, and are considered under one head in the brief. Exceptions were also taken to the charge as given by the court and to his omission to charge. The location of the tracks in the defendant's railroad yard at Island Pond is fully stated in the opinion in Place v. Grand Trunk Ry. Co., 80 Vt. 196, 67 Atl. 545. The northerly track, No. 1, was the boiler house track, and it and No. 2, called in the trial the "ash pit track," were connected by a split switch. No. 3 also led to the ash pit which was situated between the coal chute and the boiler house. No. 5 led past the coal chute, and No. 6 went upon it. There was a split switch in No. 3, about 10 feet south of the other switch. These were the only split switches in that part of the yard. An engine was being backed to the west on track No. 1, and Boulet, the hostler in charge, intended to go upon the ash pit track No. 2, supposing that the switch was set for that track, but the engine continued upon track No. 1 and struck the first of a string of four or five coal cars that stood there, knocked them along the track, and caused the collision by which the plaintiff was injured; both feet being badly crushed. The hostler was hard of hearing. The switch was equipped with a switch target, which, the defendant's evidence tended to show, was set in a manner that indicated that the switch was placed to let the engine upon track No. 1. The hostler did not look to see how the switch target was placed as he approached it with his engine. It was his duty to observe the position of the target, and, if he had looked, he could have seen it, and, if it was set wrong, have avoided the collision. The switch stand was not then equipped with a lock, though it had been till within six months or a year of the accident, and it was the defendant's custom to have locks upon similar switches in the yard.

The defendant's evidence tended to show that the engine took track No. 1 because the switch had been turned and was open for that track. It admitted that the accident was caused by the negligence of Boulet and one ground of defense was that it was not responsible for the act of the plaintiff's fellow servant. The plaintiff claimed that the negligence was the defendant's, and he introduced evidence from which he contended that, if the switch was set for the ash pit track, yet, if the points to the switch rails were bent or broken, the engine might have gone upon track No. 1, though the switch was closed to that track. The defendant claimed that there was no evidence sufficiently definite to tend in any manner to prove that a bent or broken switch point existed at the time of the accident, and certainly none to identify it as the one in track No. 2.

1. The exceptions state that there was no evidence tending to show that the switch point was bent or broken, unless the testimony of certain witnesses tended to show it, which must be considered.

Martin Gleeson, a competent expert witness, testified that, in his opinion, if the switch was set for the ash pit track, and the point of the switch was bent or broken, the engine would be as likely to go in on the boiler house track as on the ash pit track; that, if several cars were passing along, some would be likely to take one track and some the other.

Perry, the defendant's yard foreman, testified that he placed four or five coal cars on track No. 1 the forenoon of the accident; that there was one car on that track before; that the track would hold only five or six cars; that about 8 o'clock that morning, after setting the cars on there, he turned the switch for the ash pit track for which it was most commonly set, though the other track was sometimes used two or three times a day for storing coal cars; that the ash pit track was used 10 or 12 times a day, and engines went to the ash pit to be cleared of ashes; that he had no knowledge of the switch being changed that morning before the accident; that sectionmen were at work around there, but no one had authority to change it.

Boulet testified, in substance, as before stated.

Moore, a fireman, testified that he was on the engine with Boulet at the time of the accident; that he turned the switch for the ash pit track after the accident, and that the engine then passed over it; that the switch rails and points were in good condition, not bent nor broken; that sectionmen were working around there that forenoon on the switches, but he could not say what ones; that he saw no one turn the switch, and saw no one go on that track after Perry placed the coal cars on track No. 1.

Aldrich, a brakeman, testified that he and a fellow workman were passing along tracks Nos. 1 and 2 a day or two after the accident, and saw sectionmen at work upon one of the ash pit switches, but he could not say which one; that they had taken up an old rail which had a bent or broken switch point and placed it on a car.

Dennis Gleeson, a car repairer, was with Aldrich, and testified, as he did, that he saw men take a bent switch rail from one of the two switches, but he could not say which one.

The defendant's evidence tended to show that the switch rail at this switch was not bent nor out of repair.

The defendant excepted to the introduction of all the evidence relating to a broken switch rail, and, after its admission, moved to have it struck from the record, which motion was denied and the defendant excepted. It also excepted to the submission by the court to the jury of the question whether, upon the evidence, the plaintiff had made out his claim that there was a bent switch point in the switch in controversy. The defendant's contention is that the evidence did not point to the switch in question, and that the jury were obliged to "guess" which switch it was that the workmen were repairing.

This evidence was introduced by the plaintiff as a part of his opening case as tending to establish the essential fact of the defendant's negligence. It was, in brief, that the engine went wrong, the plaintiff claiming for one cause, the defendant another. The plaintiff's evidence tended to show that, if a switch rail point was bent or broken, that might have been the cause, although the switch was set for the ash pit track. A bent or broken switch rail was taken from one of the two switches a day or two after the accident, but the witnesses could not say which one. No accident had occurred at switch No. 3. In these circumstances the evidence was admissible. The defendant's claim about the collision may have been more probable than the plaintiff's, but the plaintiff's evidence tended to show that it happened by reason of an imperfect rail. Therefore it became a question for the jury to decide.

2. It is the general rule that evidence of repairs made after an accident has occurred is incompetent to show antecedent negligence on the part of a railroad company. Terre Haute, etc., R. Co. v. Clem, 123 Ind. 15, 23 N. E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303; Shinners v. Proprietors of Locks & Canals, 154 Mass. 108, 28 N. E. 10, 12 L. R. A. 554, 26 Am. St. Rep. 226; Dale v. Lack. & W. R. Co., 73 N. Y. 468; Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405. But this rule does not apply to the present case. Here an accident had happened, and the question was: Which of the two causes which the evidence tended to show existed was the more likely to have produced it? However clear it may have seemed to counsel or even to the court that it was caused by a misplaced switch, there was evidence tending to show another cause, so that it was the duty of the court to submit the question to the jury.

3. The plaintiff could not recover if the accident happened through the negligence of his fellow servant Boulet, unless he was incompetent, and the defendant knew or ought to have known of his incompetency. The plaintiff claimed that Boulet was deaf, and that his deafness would be likely to prevent his hearing the clicking sound caused by the engine in going over a switch. Boulet testified that he did not hear the click when the engine went over the switch, and that the first thing that apprised him that he was on the wrong track was the click of the wheel later as it passed over the frog; that he then looked up, and saw where he was going. If he had heard the switch click, he might have been forewarned and stopped his engine in time to avoid the collision. The defendant's evidence was that Boulet had been in its employ several years; that his deafness did not disqualify him for the performance of his duty, and that he was a competent hostler. Whether upon all the evidence he was competent, and whether, if incompetent, the defendant knew it or ought to have known it, were questions of fact for the jury to decide.

4. It was clearly competent for the plaintiff to prove that there was no lock upon this switch, that until within a year it had been kept locked, and that locks were commonly used by the defendant upon similar switches in that yard. Upon the defendant's theory of the cause of the accident, the jury might have inferred that a lock would have prevented a misplacement of the switch. It was held in Carrow v. Barre R. Co., 74 Vt. 176, 52 Atl. 537, which was an action for...