Strong v. Burlington Traction Co.

• Decision Date: 10 May 1907
• Citation: 66 A. 786,80 Vt. 34
• Parties: STRONG v. BURLINGTON TRACTION CO.
• Court: Vermont Supreme Court

66 A. 786

80 Vt. 34

STRONG

v. BURLINGTON TRACTION CO.

Supreme Court of Vermont. General Term.

May 10, 1907.

Exceptions from Chittenden County Court; Willard Wheeler, Judge.

Action by Mary M. Strong against the Burlington Traction Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MCNSON, and WATSON, JJ.

Darling & Mower and C. S. Palmer, for plaintiff. A. G. Whittemore, V. A. Billiard, and R. E. Brown, for defendant.

ROWELL, C. J. The plaintiff, a passenger on defendant's open street car, being frightened by a collision between the car and delivery wagon crossing the track, jumped or was thrown from the car and injured, for which she seeks damages. The wagon was covered, and the seat hooded with side lights. The driver could look back through the glass doors in the rear end of the wagon. There was a car just ahead of the plaintiff's car, between which and the curb the deliveryman was driving at a trot in the same direction the car was going, and just as the car passed him he suddenly turned his horse at right angles and trotted onto the track for the purpose of crossing to the other side of the street, and when the horse got onto the track it slowed up and walked, and the collision happened then, and about "mid block."

The defendant claims that its motion for a verdict should have been sustained, for that the evidence showed that the direct and immediate cause of the accident was the negligent act of the deliveryman in driving across the track; that the motorman was not bound to anticipate the act of the deliveryman, and did all he could to prevent the collision after he saw that the deliveryman was going to cross. But the testimony on the part of the plaintiff tended to show that the car on which she was riding was going at a very rapid and an unusual rate of speed, and was running too close to the car ahead of it. Now, in one or both of these respects, the motorman may have been negligent, and that negligence may have been the reason why he could not prevent the collision after he saw the situation, and therefore the motion was properly overruled. Railroad Company v. Harrell, 58 Ark. 454, 472, 25 S. W. 117, a case much in point.

The testimony was conflicting as to whether the gong was rung to warn the deliveryman of the approach of the plaintiff's car. The court charged that that question bore exclusively on whether the defendant had anything to do with...