Shum's Adm'x v. Rutland R. Co.

• Decision Date: 08 May 1908
• Citation: 81 Vt. 186,69 A. 945
• Parties: SHUM'S ADM'X v. RUTLAND R. CO.
• Court: Vermont Supreme Court

69 A. 945

81 Vt. 186

SHUM'S ADM'X

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

May 8, 1908.

Exceptions from Rutland County Court; James M. Tyler, Judge.

Action by W. H. Shum's administratrix against the Rutland Railroad Company for the death of her decedent, caused by being struck by a wild engine at a street crossing. From a judgment for defendant on a directed verdict, plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON and WATSON, JJ., and HALL, Superior Judge.

MUNSON, J. The plaintiff's intestate was killed in the Wallingford yard, at the first crossing north of the station, on Sunday, the 3d day of January, 1904, about a quarter past 5 in the afternoon, while walking westwardly directly across the track, by a "wild engine," coming from the south at a great speed, called by one witness full 60 miles an hour, and without a headlight or any signal other than a whistle nearly half a mile south of the station. There had been a considerable fall of light snow the day and night before, and it was then very cold, with some wind from the north, and some snow in the air. The engine passed, with sounds described as unusually loud, emitting clouds of smoke and steam, which settled down and around it, and producing a jarring effect, noticeable in houses near the crossing, but not noticed by a witness, who stood on the west side of the crossing 7 or 8 rods from the track. Witnesses placed this in the edge of the evening—just about dusk—while it was light, but not as light as in broad day, and spoke of the objects testified to as plainly visible.

The line of the railway through this yard is a long curve with the bend to the west. The station is south of the crossing, on the easterly or inner side of the curve. The distance from the crossing to the station is not given, but one witness gives the distance to the water tank as 10 or 12 rods, and the the station is said to be a little farther south. The size of the building does not appear. There is a side track east of the main track, extending from the station to and beyond the crossing, and east of the siding is a spur track, which ends 30 or 40 feet south of the crossing. Along the east side of the spur is a loading platform 5 feet high. Estimates of the space between the main track and the siding range from 5 to 10 feet. At the time of the accident there were 3 or 4 box cars on the siding south of the crossing, and 2 or 3 on the spur. The cars on the siding came within about 30 feet of the crossing, and the nearest car on the spur may have been anywhere from 10 to 50 feet further south. There is nothing to show how far the side of a box car projects over the rail. There was a pile of wood east of the platform, containing 15 or 20 cords, which extended north of the platform to within 10 or 15 feet of the crossing, and was about 8 feet high at the north end. Of the witnesses who gave their recollection of the number and location of the cars, one testified that the view of a person making a turn from the south onto the crossing would be so obstructed by the cars that he could not quite see to the main line, but that he could probably see down towards the depot between the cars; and another testified that a person 4 feet from the east rail of the main track could not see along that track to the south more than 10 or 12 rods. The radius of the curve is not given.

A street runs north from the station alongside the yard, with houses on the easterly side facing the tracks. The deceased lived in one of these houses, a little distance north of the crossing, and was employed in shops just over the railroad near the end of the crossing. He had lived and worked in these places for 20 years, and had passed over the crossing 4 times a day nearly every week day during that time. There have been a few regular trains on Sunday, and occasionally an extra, for several years. The passing of trains usually produced a jarring sensation in the vicinity of the crossing. The deceased was very deaf, and had been so for at least 30 years. He could not hear ordinary conversation, but could be communicated with by one standing close to him and speaking very loudly. His son was accustomed to attract his attention by stamping on the floor. He could hear a railroad whistle near by, and knew of the passing of trains by the jarring sensation produced.

The railroad crossing is in a street which runs east and west, crossing the street running north from the depot substantially at right angles. On the occasion of the accident the deceased came up the street from the south, and turned to the left to go over the crossing. A witness, who lived in the second house on the south side of the street running east, saw him from her window as he made the turn and approached the side track. She states that he wore a cap pulled down over his ears, and was walking rapidly, and looking straight ahead. The witness watched him until he had crossed the side track, and then looked south for the engine, and so was unable to say whether he looked to the right or the left before coming to the main track. Another witness, who lived in the first house on the south side of the street running east, saw him for a second while sitting by her window, and looked away, fearing an accident. She described him as between the two tracks going straight ahead, and could say no more. The deceased's cap had a flap that could be pulled down to cover the ears, and he was wearing it in that manner a few minutes before the accident. The cap was found the next morning between the main track and the siding, nearly 9 rods north of the crossing, with the flap turned down. The body was found soon after, in a dismembered condition, about a quarter of a mile from the crossing, on the same side of the track. A verdict for the defendant was directed on motion at the close of the plaintiff's case.

The general rules applicable in cases of this character are well settled. One who is about to cross a railroad track must look and listen for an approaching train, and must stop to listen if that is necessary to enable him to listen effectually. If his vision is obstructed, he must be specially vigilant as regards his hearing. If circumstances are such that his hearing cannot be relied upon, he must look with special care He must continue to look and listen, as he approaches the track, until the last moment when the discovery of a train would avail for his protection. Manley v. Delaware & Hudson Canal Co., 69 Vt. 101, 37 Atl. 279; Carter v. Central Vt. R. R. Co., 72 Vt. 190, 47 Atl. 797.

The plaintiff says it is to be presumed that the deceased was exercising the required care at the time he was killed; but the cases cited, in support of this claim, are from other states. The rule in this state puts the burden as to contributory negligence on the plaintiff. It is said in Walker v. Westfield, 39 Vt. 253, that to make a case upon which the plaintiff can safely rest he must submit evidence upon which the jury would be authorized to find affirmatively that no want of care on his part contributed to the accident. In Bovee v. Danville, 53 Vt. 189, the court declared this to be the doctrine of all our cases, and expressly repudiated any language that might seem to indicate the contrary. This court has applied the rule in cases where death has resulted from an unobserved accident. In Hyde v. Jamaica, 27 Vt. 445, the intestate was drowned while attempting to drive through a stream at a fordway. No one saw him after he entered the stream, and there was nothing to indicate the particular manner in which the accident occurred. It was assumed, in disposing of the case, that the intestate was not in fault in attempting to cross the stream. But it was considered that the law required the exercise of due care while in the stream, and that this could not be presumed, but was a fact for the plaintiff to establish. But it is not necessary that the evidence be that of an eyewitness. In Lazelle v. Newfane, 69 Vt. 306, 37 Atl. 1045, the plaintiff was so injured that he lost all recollection of what occurred, and the person riding with him was killed. The accident occurred on a bridge, and the injuries were caused by going over the log which formed a guard rail on the side of the bridge. The plaintiff had a gentle, manageable, and safe horse, with which he was familiar, and was driving towards the bridge on a walk when last seen. The wheel tracks showed that the horse came upon the bridge properly, and then cramped the wagon and backed it against and over the log. The court considered that these circumstances were evidence tending to show that the plaintiff was in the exercise of due care. The opinion says that from these facts "the jury might well infer that the plaintiff, presumably possessing the common instincts of self-preservation, did not contribute in any degree to the accident." The writer of this opinion dissented in that case, but his dissent failed to be noted. It would seem, however, upon a review of the opinion, that the clause quoted does not refer to a presumption in aid of the finding that the plaintiff was driving with due care, but to a presumption that the plaintiff, when suddenly imperiled by the backing of the horse without his fault, did all that he could to save himself. This view relieves the opinion of any erroneous suggestion that might otherwise be found in it it certainly was not intended to limit the opening proposition of the opinion that the burden was on the plaintiff to show that he was not guilty of contributory negligence in any degree.

The Lazelle Case was cited in Boyden v. Fitchburg R. R. Co., 72 Vt. 89, 47 Atl. 409. In that case the intestate and his three companions were killed while attempting to cross a double-tracked road after the passage of a train on the nearer track, by a train coming from the opposite direction on the farther track. It was stated at the outset that the burden was on the...