Robert T. Lincoln v. Central Vermont Railway Co.

Decision Date12 May 1909
Citation72 A. 821,82 Vt. 187
CourtVermont Supreme Court

Special Term at St. Johnsbury, April, 1909.

CASE for negligence. Plea, the general issue. Trial by jury at the April Term, 1908, Windham County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment is affirmed.

C W. Witters, J. K. Batchelder, and C. H. Darling for the defendant.



This was an action of case. The plaintiff was a brakeman in the employ of the defendant company, and on January 1, 1907, while acting as such on the West River Division of the defendant's road, he received injuries which he claims were the result solely of the defendant's negligence. Trial by jury was had. The verdict was for the plaintiff.

The plaintiff's evidence tended to show that on the day named a freight car, upon which he was in the line of his duty left the track while rounding a curve, carrying him with it, and that so the injuries complained of were received. The plaintiff claimed that at the time of the accident, at the point of the curve where the car left the track, the outer rail of the track was lower than the inner, instead of being higher, as the evidence tended to show it should have been. Before any witness was called there was a jury view of the place of the accident. Thereafter the plaintiff called as a witness one Chamberlain who testified that December 29, 1906, three days before the accident, he noticed that the outer rail of the curve was slightly lower than the inner rail, that it looked about the same on the day of the accident, and that he had observed the elevation of the outside rail on the very day of the giving of his evidence. He was then asked: "How does it now compare in elevation to its elevation on the 29th of December, 1906, when you were there or thereabouts?" Subject to objection and exception the witness answered: "The outer rail seems a good deal higher comparatively." This question and answer were entirely proper. The jury had just been shown how the track looked at the time of the trial and to prevent misapprehension it was proper that they should be told by way of comparison how it differed as to the elevation of the outer rail at the time of the accident and shortly before. The jury view went upon the theory that men of ordinary experience could tell something about such a matter as this, and it was not necessary that the witness should qualify as an expert. It appeared that the witness, though a farmer, had been a carpenter and builder and an amateur surveyor, but if these things had not appeared the evidence would have been proper. A man of ordinary intelligence may testify upon such matters as the settling or heaving of the ground, or a floor, of the inclination of a post, or the variation in diameter of a growing tree. Height and depth, length and breadth, size, shape, quantity, weight, odor, flavor and color, darkness and light and shade, cold and heat, opacity and transparency, dampness and dryness, roughness and smoothness, brightness and dullness, soundness and decay, speed, force, time, noise, direction and distance, are among the things which, in most circumstances, men in general may testify about, and about which they may make comparisons, although their ideas, tastes and standards may differ and their comparisons be crude if not odious. The value of such testimony can fairly be gauged by cross-examination.

The plaintiff claimed that the defendant was negligent in respect to the condition of the track, and that it did not make adequate provision for the repair of the same. On this question the plaintiff called one Kidder as a witness. He testified that he was for eighteen years a bridgeman on the West River Division in question, but that he ceased such employment about nine years before the trial; that while bridgeman he was foreman or second foreman; that in the line of his employment he saw to the laying and altering of the tracks on the bridges and their approaches; that he was familiar with the whole division of the road, and in his work dealt somewhat with tracks and curves, and the fastening together and spiking down of rails, and that his work acquainted him in a general way with the duties and work of the sectionmen. His testimony tended further to show a present acquaintance with the road, and with the section, about six miles in length, on which the accident happened. The witness was then asked the following question: "What do you say, from your experience as a railroad man, your knowledge of railroad work, as you have testified, as to whether one section foreman and two men under him is sufficient help to care for that section?" To this question the defendant objected on the ground that the witness had not shown such knowledge as qualified him to testify as an expert in relation to the matter of the question. The court found him qualified and permitted him to answer. The defendant excepted. However, the evidence had a tendency to qualify the witness and warranted the finding of the court. Since the finding was not arbitrary but was based on evidence and involved no erroneous conception of the law it is not revisable and the exception thereto avails nothing. Drouin v. Wilson, 80 Vt. 335, 344, 67 A. 825; Morrisette v. Canadian Pacific Ry. Co., 76 Vt. 267, 273, 56 A. 1102; McGovern v. Hays, 75 Vt. 104, 112, 53 A. 326; Watriss v. Trendall, 74 Vt. 54, 57, 52 A. 118; Maughan v. Burns' Est., 64 Vt. 316, 321, 23 A. 583; Bemis v. Railroad Co., 58 Vt. 636, 641, 3 A. 531; Railroad Co. v. Bixby, 57 Vt. 548, 563; Wright v. Williams's Estate, 47 Vt. 222, 234.

The defendant requested that various instructions be given to the jury. Some of these requests the court did not give and the defendant took exceptions. It is claimed in argument that the court should have complied with the fourth request and with the eighth. These requests were as follows: "(4) The trackmen were co-laborers with the plaintiff and he cannot recover if his injury was the result solely of their negligence in caring for the track." "(8) If the railroad and its bed were properly constructed at the place of accident, and the accident occurred through no fault of construction but solely by reason of the trackmen or sectionmen neglecting to make such ordinary repairs as they were accustomed to, and as it was their duty to make, the plaintiff cannot recover." These requests make no distinction between the section foreman and the sectionmen under him. As between themselves in working together there may have been no distinction; all may well have been fellow servants. Garrow v. Miller, 72 Vt. 284, 47 A. 1087; Lambert v. Missisquoi Pulp Co., 72 Vt. 278, 47 A. 1085; Brown v. Gas Light Co., 81 Vt. 477, 71 A. 204. But as to others the evidence tended to show that this section foreman represented the company. An agent or servant often acts in a dual capacity. Note to Fogarty v. St. Louis Transfer Co., 1 A. & E. Ann. Cas. 143. The duty of properly inspecting, preserving, and maintaining a track is but a continuance of the duty of proper construction and, since a corporation can act only by agents, the agent, whatever he may be called, to whom that or a like duty is assigned represents the principal, and his negligence in the discharge of that duty is the negligence of the principal, for it is a duty which cannot be so delegated as to relieve the principal from liability. Davis v. Railroad Co., 55 Vt. 84, 45 Am. Rep. 590; Houston v. Brush, 66 Vt. 331, 29 A. 380; Hayes v. Colchester Mills, 69 Vt. 1, 37 A. 269; 60 Am. St. Rep. 915; Morrisette v. Canadian Pacific Ry. Co., 74 Vt. 232, 52 A. 520; Dunbar v. Central Vt. Ry. Co., 79 Vt. 474, 65 A. 528; Sias v. Consolidated Lighting Co., 79 Vt. 224; 64 A. 1104; Kiley v. Railroad Co., 80 Vt. 536, 68 A. 713; Drown v. N.E. Telephone & Telegraph Co., 80 Vt. 1, 66 A. 801; Williams v. Norton Brothers, 81 Vt. 1, 69 A. 146; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Northern Pacific R. Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829; Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 386, 13 S.Ct. 914, 37 L.Ed. 772; Union Pacific Ry. Co. v. Daniels, 152 U.S. 684, 14 S.Ct. 756, 38 L.Ed. 597; Northern Pacific R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958; Baltimore & Potomac R. Co. v. Mackey, 157 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; Union Pacific Ry. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Texas & Pacific Ry. Co. v. Barrett, 166 U.S. 617, 17 S.Ct. 707, 41 L.Ed. 1136; Texas & Pacific Ry. Co. v. Archibald, 170 U.S. 665, 18 S.Ct. 777, 42 L.Ed. 1188; Choctaw &c. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; El Paso R. Co. v. Vizard, 211 U.S. 608, 29 S.Ct. 210, 53 L. Ed.

The testimony tended to show that at a curve the proper elevation of the outside rail above the level of the inner is a guard against derailment, and such a guard as is necessary to the provision of a reasonably safe place.

At the close of the evidence the defendant moved the court to direct a verdict in its favor. The motion was overruled and the defendant excepted. The defendant now claims that the motion should have been complied with on the ground: "That the testimony shows that the derailment was caused by the failure of the sectionmen to make the repairs upon the track and that these sectionmen and the plaintiff were fellow servants." The claim made is equivalent to a claim that there was not evidence tending to show proximate negligence on the part of the defendant, for if there was proximate negligence on the part of a fellow servant...

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