Vaillancourt v. Grand Trunk Ry. Co. of Can.

• Citation: 74 A. 99,82 Vt. 416
• Parties: VAILLANCOURT v. GRAND TRUNK RY. CO. OF CANADA.
• Decision Date: 06 October 1909
• Court: United States State Supreme Court of Vermont

74 A. 99

82 Vt. 416

VAILLANCOURT

v. GRAND TRUNK RY. CO. OF CANADA.

Supreme Court of Vermont. Special Term at St. Johnsbury.

Oct. 6, 1909.

Exceptions from Essex County Court; Alfred A. Hall, Judge.

Action by Alfred E. Vaillancourt against the Grand Trunk Railway Company of Canada. There was a verdict and judgment for plaintiff, and defendant excepts. Affirmed.

The facts shown by the evidence on the trial of the issue of fraud sufficiently appear in the opinion. The evidence introduced on the trial of the general issue, in its most favorable view to the plaintiff, tended to show that he commenced work for the defendant June 14, 1906, and worked until he was injured, August 14th following. That at first he was sent one trip from Island Pond, this state, to Portland, Me., and back to learn the road. Thenceforth, working as a brakeman, he made two round trips between tween the same places; then went over on the Cannon Ball from Portland to Mechanics Falls a little over two weeks; then was [ transferred back to Island Pond, and ran again from there to Portland and back two or three trips; then he ran on the gravel train from the pit at South Paris going towards Portland for about a month; then went back to Island Pond, and ran on freight train between there and Portland, having run six, seven, or eight trips when he was injured. That only when running between Island Pond and Portland did his train pass through West Paris, where the accident happened, and from which place going westerly a helping engine was used as far as Bryant's Pond some six miles further west; it being a pretty steep grade. That at West Paris there was a side track on the southerly side of the main line, and previous to the time of the accident the train on which the plaintiff was braking going westerly would pull through the main line, stopping so the caboose would be opposite the station, and the helping engine would be backed off the siding onto the main line, and be attached to the rear end of the train. That the easterly switch is probably three or four car lengths from the station, and the westerly switch is farther away, not in sight from the station, and during the time of the plaintiffs service for the defendant the usual way of taking a siding and leaving it again was to go in at one end and go out ahead at the other end. At no time before the occasion in question did the train on which the plaintiff was braking, in allowing another train to pass in the same or opposite direction, pull onto a siding, and then, after the other train had gone by, back out of the same switch onto the main line again. That when the train arrived at West Paris the plaintiff was braking at the head end of the train. That the conductor of the train before reaching West Paris told the plaintiff that the train would take the siding there, but did not say anything about going out of the siding other than in the usual manner. That the train stopped easterly of the east switch, the switch was opened for the train to pull through, and then the plaintiff mounted the head car, where he remained until the train was in clear of the switch, when he went to the switch at the westerly end of the side track, five or six car lengths west of the head of the train, and sat down waiting for No. 6 train to pass. That when that train had passed, he unlocked the switch, took the lock out of the eye, and put it onto an iron, a part of the switch, but did not open the switch or connect it with the main line. That then the engineer beckoned the plaintiff to come back, and, not knowing what the engineer wanted, and still supposing that the train would be run through that switch, he started back, leaving the switch unlocked. That when about halfway back, the engineer blew the whistle for "back up." This being the plaintiff's first information that the train was to be backed out, and not having time to go and lock the switch left unlocked, he mounted the head car so as to give signals, as was his duty. That the train backed out of the switch onto the main line, through which it had come in, the plaintiff locked the switch, mounted the head car, and the train started westerly toward Island Pond. That when opposite the west end switch which the plaintiff had left unlocked, he jumped off the train, and locked the switch, as was his duty, then walked back easterly between the siding and the main line, because the train was going so fast—probably six or eight miles an hour—that he thought it not best to take the chances of getting on. He, noticing also that it was slowing up a little, planned to wait for a good chance. That while thus waiting he was watching the passing cars looking for a change to get on safely. That when the caboose came along the train was going from three to five miles an hour, and he attempted to mount. That he did not know the helping engine was attached behind until he noticed the smoke after it came around the curve, some 30 or 40 rods away. That preparatory to mounting he was getting a start by a little run alongside the train, as usual, looking for the grab iron on the car, and not looking down; had gone about 15 feet in that way, and was getting ready to reach for the grab iron and swing onto the step, when he stepped on a piece of clinker lying on the track, his foot was tripped thereby, and he fell before he had a chance to get hold of the grab iron. That his legs were run over by the helping engine; one cut off, and the other so injured as to make amputation necessary. That the clinker was half the thickness of a man's head, and some 9 inches wide —more fiat than round, and all of half as long as "an ordinary man's head." That it was an old piece of clinker, cold, and had considerable sand all over it, and cinders on it, had not been seen by him, and he did not know it was there, nor did he expect a clinker would be there, but on the contrary, he expected the yard there was a safe place; he then knowing that, by a rule of defendant company, it was the duty of the station agent to inspect the yard daily, and to keep the grounds clear upon which the plaintiff was then working, which rule reads: "They [station agents] will have charge of the company's books, papers, buildings, sidings and grounds at their stations. * * * They will daily inspect all buildings, grounds, outhouses, etc., under their charge, and see that they are kept clean, tidy and in proper condition for use"—and its observance was expected by the plaintiff. That on the day in question, at the time of the accident, the yard at that place had not been inspected, but was between one and two hours later. The testimony in chief of one expert witness, living in Island Pond and having some knowledge of the trains over the defendant's road was that in his opinion it is essential to good railroading that the track be inspected every morning, because most of the traffic is in the daytime, the local trains, and it is advisable to know the tracks are in a suitable condition before the day's traffic begins, and that this would apply to a station midway between two terminal points from which trains start morning and night; while in cross-examination he testified to night trains, both freight and express, over defendant's road, and that for a line running day and night inspection at any time of the day in daylight is as good as 7 o'clock in the morning. The evidence further tended to show that it is customary for conductors and brakemen on defendant's road to get on and off trains moving at the speed of five miles an hour. Other evidence is referred to in the opinion.

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

H. W. Blake and Simonds & Searls, for plaintiff. H. B. Amey and Leroy L. Hight, for defendant.

WATSON, J. This is an action to recover damages for injuries resulting from the alleged negligence of the defendant when under its employ as a brakeman on its freight train running from Portland, Me., to Montreal, Canada. Pleas, general issue, and special that the defendant had obtained a full release and discharge under seal from the plaintiff releasing and discharging it from all liability which may have arisen on account of the alleged negligence. The plaintiff replied that said release and discharge were procured by fraud, and that he had tendered back the money received. A separate trial by jury was had on each issue— an anomalous procedure—resulting in a verdict on the issue of fraud "that the so-called release and discharge was procured by fraud," and that the plaintiff repudiated the release, and tendered back the money received within a reasonable time; also for the plaintiff on the general issue, with an award of damages. The questions saved on the two trials will be considered in the same order.

Evidence was introduced tending to show that the plaintiff is a Canadian by birth, without much education; that he lived in Canada till nine years old. In the last two or three years of that time attended school there, and learned to read and write French. That then he came to the United States, and within the next three years attended a night school one winter, and learned to read and write English "a little," but that his understanding of the English language is very imperfect, and especially as to hard or uncommon words, and such technical words and phrases as are used in the contract or release in question.

Defendant objected to the admission of any evidence outside of the release itself, on grounds reduced and stated thus: (1) That the written contract of release speaks for itself, and evidence to vary it is inadmissible; (2) that all the allegations of fraud set up in the replication are as to the legal effect of the release itself. The real issue presented, however, was whether the so-called release was fraudulently obtained by the defendant of the plaintiff; he in fact intending to give only a receipt for the money received by him, and, relying upon the...