Seeley v. Cent. Vt. Ry. Co.

• Decision Date: 14 October 1914
• Citation: 92 A. 28,88 Vt. 178
• Parties: SEELEY v. CENTRAL VERMONT RY. CO.
• Court: Vermont Supreme Court

92 A. 28

88 Vt. 178

SEELEY

v. CENTRAL VERMONT RY. CO.

Supreme Court of Vermont. Chittenden.

Oct. 14, 1914.

Exceptions from Chittenden County Court; E. L. Waterman, Judge.

Action by Mina L. Seeley against the Central Vermont Railway Company. Verdict and judgment for plaintiff, and defendant excepts. Judgment affirmed.

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

M. G. Leary and V. A. Bullard, both of Burlington, for plaintiff.

C. W. Witters, of St. Albans, Harry B. Amey, of Island Pond, and C. S. Palmer, of Burlington, for defendant.

TAYLOR, J. The plaintiff's alleged injury occurred on the 29th day of January, 1912, at the defendant's railway station in Jericho. On the evening of the accident the plaintiff took passage on defendant's train at Jeffersonville bound for Jericho. She carried a suit case, a box, and a hand bag, which she had placed in the seat in front of her on entering the train. She had frequently ridden on the defendant's train to and from Jericho, and was familiar with the train and stations and was personally known to the conductor. Before entering the train she purchased a ticket for Jericho, which was taken up by the conductor. On the evening in question she was the only passenger for Jericho. The night was dark, and it was storming and the wind blowing. The train consisted of an engine and tender, a combination mail and baggage car, a passenger conch, and a smoking car, arranged in the train in the order named. The plaintiff was seated toward the front end of the passenger coach. The plaintiff testified that before arriving at Jericho she heard the conductor announce the station; that she got her bundles together; that just as soon as the train stofped at Jericho she proceeded to alight; that when she reached the front platform of the car, and just as she was taking the first step down from the platform, the train started with a sudden jolt and threw her to the station platform, causing the injury complained of. She had the box containing a dress under her right arm, the hand bag in her right hand, and the suit case in her left hand. She did not take hold of the railing on the platform, and testified that she did not have time to do so before the train started. The conductor was at the rear end of the passenger coach, the place usually taken by him to help passengers on or off the train. He did not remember that any one was to get off at Jericho. He was a conductor of long experience, and had never had an accident before. The defendant's evidence tended to show that the train was in motion before the plaintiff reached the door of the car; that the train started without a jolt; that plaintiff had some difficulty in ofening the door; that the train had gathered considerable speed when the plaintiff attempted to step from the moving car, and in so doing she tripped and was thrown when she stepped to the platform.

Dr. Eddy, a physician, was called by the plaintiff, and among other things testified to an examination of the plaintiff, made shortly after the accident, with Dr. Beecher. In cross-examination, after having testified to hearing a talk between Dr. Beecher and the plaintiff at the close of the examination, in which Dr. Beecher advised her to give up her school, he was then asked: "Q. What else did he tell her about the injury, if anything V" On objection that it was hearsay and immaterial, the question was excluded "as the matter now stands." The question was outside the direct examination, and so, if material, was out of time. It is apparent that the court so treated it, and it was not error to exclude the question, at least at that stage of the trial. Besides, there was no offer and the case does not show that the testimony sought to be elicited by the question was material to any issue, as the case then stood.

Defendant's second, fourth, fifth, seventh, eighth, and tenth exceptions relate to testimony given by certain witnesses as to what plaintiffs said upon certain oceasions as to then suffering pain. Evidence of complaint of present pain and suffering was received under exception against the objection that it was hearsay, not a part of the res gestae, and incompetent because delivered "to a third person, a stranger, one not connected in any way as an attendant upon the person injured." The rule that such declarations are admissible whenever the bodily or mental feelings of the declarant, or the nature, symptoms, and effects of the malady from which he is then suffering, are material to be proved is too well established to justify discussion or require the citation of authority. The objection as to the competency of the witnesses is untenable. While if made to a medical attendant they may be entitled to greater weight as evidence, if made to any other person they are not, on that account, rejected. 1 Greenleaf Ev. § 102; 3 Wig. Ev. § 1719; Bagley v. Mason, 69 Vt. 175, 178, 37 Atl. 287. The case shows that the questions objected to were confined to complaints of present pain, and it was not error to admit the testimony.

One Whittemore, who was at Jericho Station to meet the plaintiff, when the train arrived, was asked to give his ofinion as to the length of time the train was standing at the station. This was objected to on the ground that the declaration did not charge the defendant with shortage of legal duty to the plaintiff in not giving her ample time to leave the train. The court overruled the objection, and the witness answered under exception, "Not over 45 seconds." At the close of the evidence the defendant moved for a directed verdict, among other things, on the ground "that there is no general charge of negligence in the declaration," and "that there is nothing said in the declaration to indicate a claim for recovery upon the ground that the defendant did not stof its train a sufficient length of time at Jericho Station to enable the plaintiff to proferly alight therefrom." The court overruled the motion and allowed the defendant an exception. The court charged the jury with reference to the duty of the defendant to give the plaintiff a reasonable length of time to alight after the train stofped and submitted the case upon the question of negligence in that regard, to which the defendant excepted because of the insufficiency of the declaration. These questions can conveniently be considered together.

The admissibility of the testimony is not dependent upon the declaration. The length of time the train was standing was one of the circumstances of the accident and bore upon the probability of the truth of the plaintiff's testimony. State v. Burpee, 65 Vt. 1, 4, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775; Wheeler v. Wheeler, 77 Vt. 177, 181, 59 Atl. 842; State v. Donovan, 75 Vt. 308, 319, 55 Atl. 611.

On the motion for a directed verdict and the exception to the charge of the court it is necessary to consider the sufficiency of the declaration to support the claim of negligence in failing to give the plaintiff sufficient time in which to alight. The declaration contains the allegations:

"That at Jericho * * * said train was slowed up and stofped, and the plaintiff at once, in the exercise of due care and caution, and without fault or negligence on her part, attempted to get off said car and train;...