Skinner v. Cent. Vt. Ry. Co.

• Decision Date: 03 September 1901
• Citation: Skinner v. Cent. Vt. Ry. Co., 50 A. 1099, 73 Vt. 336 (Vt. 1901)
• Court: Vermont Supreme Court
• Parties: SKINNER v. CENTRAL VT. RY. CO.

50 A. 1099

73 Vt. 336

SKINNER

v. CENTRAL VT. RY. CO.

Supreme Court of Vermont. Windsor.

Sept. 3, 1901.

Exceptions from Windsor countycourt; Munson, Judge.

Action by William Skinner, administrator of the estate of Loren H. Carpenter, against the Central Vermont Railway Company.From a judgment in favor of the plaintiff, the defendant excepts.Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, START, WATSON, and STAFFORD, JJ.

Hunton & Stickney and William E. Johnson, for plaintiff.

C. W. Witters, for defendant.

START, J.The action is case for the alleged negligence of the defendant, said to have caused the death of the plaintiff's intestate, and is brought under V. S. § 2452, for the benefit of the widow and infant child of the deceased.It appears that the intestate was a brakeman on the defendant's freight train; that, soon after the arrival of the train upon the main track in the Hartland yard, the locomotive and nine cars were detached from the remainder of the train, and run to the north part of the yard, where they were switched onto a side track lying east of the main track, and backed down a considerable distance for the purpose of detaching the ninth car, and flying it onto a spur track.While the cars were being so backed, the intestate was standing upon the top of the ninth car.The other brakeman, Strong, who was standing on the ground, had been instructed by the conductor to pull the pin, and ride the ninth car onto the spur track; whereupon, while the train was still backing down, Strong mounted the ladder on the north end of the ninth car, between the eighth and ninth cars, and told the intestate he would pull the pin and ride the car in, and the intestate said, "All right" The intestate, who was then on the ninth car, stepped across to the eighth car.This occurred while the train was still backing.After it came to a stop, the train was put into a rapid forward motion—10 or 15 miles an hour —in order to give the rear car, when it should be detached, sufficient headway to run onto the spur track.Strong pulled the pin and. rode the car onto the spur track.The intestate fell backward from the rear end of the eighth car, and was run over and killed by the ninth car, which was beswitched onto the spur track.The negligence claimed consisted of defective construction of the side track in its plan, involving the necessity for a flying switch, the claim being that the spur track should have been continued so as to make another side track.It was also claimed that the track should have been level, and not upgrade toward the spur; and that the track was not aligned regularly, but was uneven, producing uneven motion, unsteadiness of the cars, and insecurity to one standing on the top of the cars.The Intestate was 25 years of age, and of ordinary capacity and intelligence.He commenced work for the defendantDecember 15, 1808, in the capacity of spare brakeman and yard coupler.As brakeman on the defendant's trains, between February 1, 1809, and August 21, 1899, the day of his death, he, as such brakeman, passed through the yard in question 153 different days, making in all 373 special trips over or upon the place of accident, and 36 times in or upon a train moving over the siding for the purpose of moving a car from or to the spur track.The trains upon which he was braking frequently took the siding in question for the purpose of allowing trains to pass on the main line, and he had just passed over the track in question while riding upon the top of the train, going in the opposite direction, for the...