Seviour v. Rutland R. Co.

• Decision Date: 14 October 1914
• Citation: 91 A. 1039,88 Vt. 107
• Parties: SEVIOUR v. RUTLAND R. CO.
• Court: Vermont Supreme Court

91 A. 1039

88 Vt. 107

SEVIOUR

v. RUTLAND R. CO.

Supreme Court of Vermont.

Oct. 14, 1914.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action by Warren W. Seviour, as administrator, against the Rutland Railroad Company. There was a judgment for defendant, and plaintiff excepted. Exceptions overruled.

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

Hugh Chase, Clarke C. Fitts, and Hermon E. Eddy, all of Brattleboro, for plaintiff. Edwin W. Lawrence and T. W. Moloney, both of Rutland, for defendant.

MUNSON, J. Mrs. Seviour, the plaintiff's intestate, and her sister, Miss Hazen, while riding in a light open wagon drawn by one horse, with Miss Hazen driving, were killed by a north-bound train of the defendant at the first crossing north of Chester station. Mrs. Seviour was 22 years of age, and had been married 4 years, during the last 2 of which she had lived about a mile from the crossing, in the south part of the village, on the west side of the railroad. Until her marriage she lived with her parents a few rods from the crossing, on the easterly side of the track. Miss Hazen was a nurse, 41 years old, and had lived at this place 20 years, except that during the last 10 years she was away from home about half the time. C. R. Hazen, a brother lived here with Miss Hazen after the marriage of Mrs. Seviour and the subsequent death of the parents, getting most of his meals at Mrs. Seviour's when Miss Hazen was away. The location of the Hazen house was such that passing trains were plainly visible to its occupants.

The train which caused the injury consisted of the combined engine and observation car Nehasne, and a pay car. The train, as thus made up, goes over the road about once a month at irregular intervals, having no schedule time, and not stopping regularly at stations. It did not stop at Chester on this occasion. All passenger trains stop there. There is a crossing at the south end of the station, and another about a third of a mile below. The station signal is one long whistle, and this is required whether there is to be a stop or not. The signal for a crossing consists of two long and two short whistles. The evidence regarding the giving of signals was contradictory. The theory of the plaintiff, as stated in his brief, was that the occupants of the wagon were lulled into security by the giving of the station signal only, and the fact that passenger trains always stopped at Chester.

C. R. Hazen was called by the plaintiff, and testified that he had frequently driven with his sisters, and that they had talked about trains and signals; and, after testifying under defendant's exception that there was a difference between the sound of a freight train and a passenger train as it approached, he was asked, "Are you able to distinguish which kind of a train is approaching by the sound?" and this was excluded. Counsel argue that, inasmuch as all three had the same opportunities of observation, the knowledge which Mrs. Seviour and her sister had acquired by their observation could be shown by proving what the brother would have known. We think the argument is unsound, and that the question was properly excluded. This is not like proving whether an object can be seen or a sound heard from a given point. This involved a determination of the understanding which persons of different habits of observation and different capabilities would gain from the same opportunities. It was not a matter to be determined by tests. In the absence of proof of any information directly conveyed to them, the knowledge of the deceased parties was to be inferred by the jury from all that the evidence disclosed regarding them and their opportunities.

The court referred to the crossing signal as required by the law and the rules of the company, and instructed the jury that in determining the issue regarding the giving of the signals they should keep in mind that the burden was upon the plaintiff to make out by a fair balance of evidence that the whistle was not sounded or the bell not rung, and that the rules of the company, introduced in evidence, governing the engineer in this regard, were to be considered with the other evidence in the case, keeping in mind that there was a rule which required the engineer to perform this duty, and the probability of his having discharged his duty, and thereupon submitting the question: "Do you find by a fair balance of the evidence that the signals were not given?" The plaintiff excepted to the charge that the jury should keep in mind the rule requiring signals and the probability that that rule was complied with.

The language complained of was not used in charging the jury upon any point of law. The court was dealing with a controverted matter of fact and the evidence bearing upon it. The jury were not told that the matters referred to raised any presumption in favor of the claim that the signal was given. The statement was, at most, an expression of the court's opinion that the existence of the requirement afforded some support to the testimony of the witnesses who said that the signal was given. There is no legislative provision or judicial holding in this state that bars the court from expressing its opinion regarding the evidence and the weight of the evidence. The right is seldom exercised, but its existence remains unquestioned. The expression must, however, be fair and reasonable, and be accompanied by instructions which plainly leave the determination with the jury. Sawyer v. Phaley, 33 Vt. 69; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Baker v. Sherman, 71 Vt. 439, 46 Atl. 57.

The language excepted to was nothing more than an incidental comment upon one feature of the evidence. The facts that the statute required the giving of the signal, and that a rule of the company directed it, and that it was a stated and frequently recurring duty of the employé, might reasonably be thought by the jury to lend some probability to the claim that it was given on this occasion; and it was within the discretion of the court to suggest these things to the jury as matters proper for their consideration in connection with the testimony of the witnesses. The jury had already been distinctly told...