Seymour v. Cent. Vt. R. Co.

• Decision Date: 20 July 1897
• Citation: 69 Vt. 555,38 A. 236
• Court: Vermont Supreme Court
• Parties: SEYMOUR v. CENTRAL VERMONT R. CO.

38 A. 236

69 Vt. 555

SEYMOUR

v. CENTRAL VERMONT R. CO.

Supreme Court of Vermont. Chittenden.

July 20, 1897.

Exceptions from Chittenden county court; Tyler, Judge.

Case by William Seymour against the Central Vermont Railroad Company for negligence. Heard on general demurrer to the declaration. To a pro forma judgment sustaining the demurrer and adjudging the declaration insufficient, plaintiff excepts. Reversed.

The declaration alleged that the plaintiff, when he received the injury, was walking on a portion of the railroad which had been for many years in constant use by the public as a passageway with the knowledge and implied consent of the defendant.

H. P. Wolcott, for plaintiff.

C. W. Witters, for defendant.

TAFT, J. We notice the questions raised by the brief of the defendant's counsel, and none other. The defendant assigns seven reasons why the declaration is insufficient to establish a cause of action. The first six raise substantially the same question, and are all based upon the claim that the plaintiff was in fact a trespasser upon the roadbed, and therefore the defendant was under no duty in respect to him. The plaintiff may establish his right of action by showing that his injury arose from the neglect of the defendant, if he was in the exercise of ordinary care at the time of the casualty, notwithstanding he was upon that part of the roadbed which was not a public crossing, and although he was not there by the invitation of the defendant, nor by any inducements held out by the defendant to him, and was there without any purpose of transacting business with the defendant. It is not necessary that he should allege that he was using the road by any agreement with the defendant. A legal duty or obligation from the defendant to the plaintiff might arise not with standing the existence of the absence of any of the facts above stated, and it is unnecessary for the plaintiff to allege that the defendant was willfully or recklessly negligent. In respect to negligence, it would depend upon whether the defendant was in the exercise of ordinary care. The allegation in the declaration is that the plaintiff was upon the track with the implied consent of the defendant, in pursuance of a long-continued custom, which was known to the defendant, and permitted by it without objection, and impliedly consented thereto. Under these circumstances, the defendant cannot excuse itself from any negligence of which its servants were guilty at the time the...