Sanderson v. Boston & M. R. R.

• Citation: 91 Vt. 419,101 A. 40
• Court: United States State Supreme Court of Vermont
• Decision Date: 08 May 1917
• Parties: SANDERSON v. BOSTON & M. R. R.

101 A. 40

91 Vt. 419

SANDERSON

v. BOSTON & M. R. R.

Supreme Court of Vermont. Caledonia.

May 8, 1917.

Exceptions from Caledonia County Court; Zed S. Stanton, Judge.

Action by Percy D. Sanderson against the Boston & Maine Railroad. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Porter, Witters & Harvey, of St. Johnsbury, for plaintiff. George B. Young and Walter H. Cleary, both of Newport, for defendant.

MUNSON, C. J. The plaintiff, a brakeman employed by the defendant, was injured in the defendant's freight yard at Lowell, Mass., while upon the upper rounds of the side ladder of a moving freight car, by striking against the corner of one of several freight cars which were standing together on another track. The suit is brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), and seeks to recover on account of the negligence of the defendant as alleged in a declaration and amendment thereof containing 17 counts. The only exception argued is one taken to the overruling of the defendant's motion for a directed verdict. The grounds of the motion as therein stated present the claims that there is no evidence tending to show negligence on the part of the defendant; that on the evidence presented the sole cause of the accident was the plaintiff's negligence; that the risk was one naturally incident to the plaintiff's employment and therefore an assumed risk; that the risk was due to a permanent condition, of which the plaintiff had or ought to have had knowledge, and was therefore assumed by his continuing in the work without objection. The testimony of the plaintiff is all the evidence we have regarding the location of the tracks and the manner in which he received his injury.

The plaintiff had worked for the defendant as a brakeman over three years, first irregularly as a spare hand, and afterwards continuously on a regular extra train. His runs during this time were on different lines, some of which passed through the Lowell yards, where there was frequently some shifting of cars by the crew. At the time of the accident, which occurred just before dark, the plaintiff was the flagman and had the care of the lamps, and these he had ready for lighting before going to the work in which he was injured. He testified that he was sometimes called upon to assist the conductor, and that it was his duty when his own work was done to help get the train over the road. On this occasion he had been helping the conductor check up some cars, and had afterwards gone forward on the top of the rear cars letting off some brakes. In thus passing up the train he came to the car on which he was injured, and started to go down the side ladder to set a switch. As he was beginning to descend he glanced ahead, and saw, some 35 feet away, among the cars standing on the next track, one which stood out further than the rest, which he thought would not clear him. He attempted to get back upon the roof of the car, but was hit by the projecting car and thrown to the ground. Tho plaintiff testified that no one asked him to set this switch, but that there was no one else there to do it; that the middle man sometimes set the switch; and that he thought he was then on that section of the' train.

The plaintiff testified that he had occasionally helped in making shifts in this yard, but was not very familiar with the tracks; that he had never known of a brakeman being knocked off a side ladder by a car on another track; that he had never been told or cautioned regarding such a risk, and had never known but what, between tracks, there was room enough to ride on the ladder; that he had seen cars that were not set in to clear, where a man riding on the side would get hit; that the rule was to set cars in far enough so that they would clear, and that he always supposed that that was the practice, but that he did not know as he had observed enough to know what the practice was; that cars could not be left on a curve, but must be on where the track was straight, and that all that was necessary was to have them far enough on to clear everything on the next track; that where he had testified about clearing the cars he meant clearing the car and a person on the side of it.

In one place the plaintiff testified that he 'did not know whether the car he struck stood on a cross-over or not; but he stated elsewhere that they had passed cars before coming to this one, and that there were cars beyond this, and these statements indicate that the car was not on a cross-over. Defendant comments upon the answers which the plaintiff gave in stating what he understood the requirement to be as regards adequate provision for the "clearing" of the cars, and calls attention to the fact that it was not until after plaintiffs counsel had had an opportunity to confer with him that he changed his testimony to include the clearing of a...