White v. Cent. Vermont Ry. Co.

• Decision Date: 12 January 1914
• Citation: 89 A. 618,87 Vt. 330
• Parties: WHITE v. CENTRAL VERMONT RY. CO.
• Court: Vermont Supreme Court

89 A. 618

87 Vt. 330

WHITE

v. CENTRAL VERMONT RY. CO.

Supreme Court of Vermont. Franklin.

Jan. 12, 1914.

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Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by Mary T. White, as administratrix, against the Central Vermont Railway Company.Judgment for plaintiff, and defendant excepted.Exceptions overruled.

The following is a copy of Form A, Clearance Card, with explanatory note accompanying it, referred to in the opinion, as appears in defendant's Book of Rules:

Form (A)

CENTRAL VERMONT RAILWAY CO. CLEARANCE.

(B) 6:45 A. M. June 6, 1911.

Train"**' No 12.

I have orders, (5-7 and 9).(Nil) for your train.The next train ahead is (Extra 751) It left this station at 8: 35 a m., and arrived at;(C) at 8:56 a. m. Signal is displayed for .(Extra 576)(Block) and does not affect you.

John Jones.

Operator.

This does not affect any train orders you have received.

Conductors and Engineers must each have a copy, and see that their train is correctly designated in the above form.

Note.—he numbers of orders for the train must be filled in in figures.Where there are no orders the word "nil" must be written in.If the next train ahead has not reached the next telegraph office the words "not yet" must be written in the blank space provided for the time of arrival at the next telegraph office.The other blank spaces are to be filled in as indicated by small type.Operators must keep the lowest copy.Where the Automatic Block Signals are in service instead of Station Block, the information relative to the train ahead may be omitted.

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

C. G. Austin & Sons, of St. Albans, for plaintiff.C. W. Witters, of St. Albans, Harry B. Amey, of Island Pond, and C. S. Palmer, of Burlington, for defendant.

WATSON, J.This is an action on the case, claimed by the plaintiff to be under the federal Employers' Liability Statute, but by the defendant to be under the state law, to recover for personal injuries resulting in the death of the plaintiff's intestate, Enoch L. White, on the 12th day of January, 1912.The declaration contains several counts, but in the respects essential to be noticed in disposing of this question, the allegations of all the counts are substantially alike, and may be stated with sufficient definiteness for this purpose as follows: That prior to and on the day named above, the defendant corporation was the owner and operator of a certain railroad, extending from St. Johns in the province of Quebec in the Dominion of Canada, to and through the city of St. Albans, in the state of Vermont, and through the towns of Braintree, Randolph, and Bethel to White River Junction in said state, and in connection with other lines of railroad to and through other states, was then and there engaged in commerce between several states, and between the state of Vermont and the Dominion of Canada, as a common carrier; that on the day aforesaid the intestate was engaged in the defendant's employ on its railroad as a freight brakeman, and that while thus engaged, at a certain point between the stations of Randolph and Braintree, solely by reason of the carelessness and negligence of the defendant, its agents, servants, and employes, a collision between two of the defendant's freight trains occurred, and the said intestate, by means thereof, and solely by reason of the negligence of the defendant, its agents, servants, and employes, and without fault or contributory negligence on his part, while in the performance of his duty as brakeman on one of said trains, was instantly killed.The allegations further show that the intestate left surviving him a widow, then pregnant, and minor children, including the one yet unborn, but subsequently born alive, and that this suit is brought by the personal representative of the intestate for the benefit of said widow "and next of kin minor children, under and by virtue of the statute and laws in such case made and provided."

None of the counts contain averments showing that the train on which the intestate was engaged at the time of his injury was being operated in interstate or foreign commerce, nor that he was then employed by the defendant in such commerce, without which character of his employment there could be no right of action under the federal Employers' Liability Act.Mondou v. New York, New Haven & Hartford Ry. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44;Pedersen v. Delaware, Lackawanna & Western Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125.The defendant pleaded in bar, expressly alleging, among other things, that at the time of the happening of the several things in the plaintiff's declaration mentioned the defendant was and ever since has been a common carrier, by railroad, engaged in commerce between the state of Vermont and the state of Massachusetts and the state of Connecticut, and between the state of Vermont and the Dominion of Canada, and that at the time the plaintiff's intestate received the injuries complained of in the declaration, he, the intestate, was employed by the defendant, common carrier as aforesaid, in such commerce.The plaintiff replied precludi non, because, etc., Iterating the said allegations in the defendant's plea, and averring that, by the laws and statutes of the United States and of the state of Vermont, the court has full and complete jurisdiction of the matters and things set forth in the plaintiff's declaration to determine according to law—concluding to the country.

Defendant demurred to the replication, because: (1) It is no answer to the defendant's plea; (2) it is a complete departure from the writ; (3) it introduced a new cause of action not contemplated in the declaration; (4) it does not support or fortify the declaration; (5) it does not present matter of estoppel to defendant's plea; (6) it does not traverse the plea; (7) it does not confess and avoid the plea; and (8) the declaration purports to recover damages under the laws of the state of Vermont, while the replication confesses that the action should be under the federal Employers' Liability Law.On hearing, the demurrer was overruled and exception saved.Thereupon a jury was impaneled, and a trial had, resulting in a verdict for the plaintiff, and judgment was rendered thereon.By thus pleading over and going to trial upon the merits, the defendant waived its demurrer.German v. Bennington & Rutland R. Co., 71 Vt. 70, 42 Atl. 972.

After verdict, the defendant undertook, by motion in arrest of judgment, to raise the same legal questions respecting the declaration with reference to the federal Employers' Liability Law, as were presented on the demurrer, though some of the assignments were somewhat different in form, one being that the declaration purports to be under the said federal statute, but contains no allegation that the defendant was engaged in interstate commerce at the time of the injury to the intestate, nor 'that the intestate was then and there engaged in the promotion of such commerce, and excepted to the overruling of the motion.The rule is, however, that after judgment on demurrer by solemn determination, there can be no motion in arrest of judgment, for any exception that might have been taken on arguing the demurrer.2 Tidd'sPr. 918;Edwards v. Blunt, 1 Str. 425;Ross v. Bank of Burlington, 1 Aikens, 43, 15 Am. Dec. 664.

Moreover, though the declaration lacks averments showing that the intestate at the time of his injury, was employed by the defendant in interstate or foreign commerce, yet not only was the declaration aided in this respect by the defendant's expressly averring in its plea in bar the facts omitted from the declaration and essential in order to set forth a good cause of action under the federal law (Ralston v. Strong, 1 D. Chip. 287;Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526), but the matter replied by way of departure—if it was a departure, a question we do not decide—would have been a sufficient answer, in substance, to the defendant's plea had the plaintiff pleaded it in the first instance, and the verdict in favor of the party who made the departure cured the fault.The only mode of taking advantage of a departure is by demurrer, and since the defendant, instead of standing upon its demurrer, took issue upon the replication containing the departure, and it being found against the defendant, the court will not arrest the judgment, for after such finding it necessarily appears on the whole record that the plaintiff is in law entitled to judgment.Lee v. Raymes, SirT. Raym. 86; 2 Saund.P1. & Ev. 807;1 Chitt. Pi. 648; Gould's P1. c. viii, § 79;Stevens'P1. 147;Farmers' & Mechanics' Bank v. Flint, 17 Vt. 508, 44 Am. Dec. 351.It follows that since by its plea in bar the defendant expressly supplied the omission in the declaration, essential to a good cause of action under the federal law, and since issue was joined on the replication departing (defendant asserts) from the declaration accordingly, the defendant's objection to the introduction of any evidence because the declaration does not state facts sufficient to constitute a cause of action under that law was properly overruled.

The deposition of W. E. Lamson was used by the plaintiff.The deponent, the undertaker who prepared the body of the intestate for burial, testified to being at the scene of the accident soon after the collision.On being asked where he found the body of the intestate, he answered, subject to defendant's exception on the ground that damages for pain and suffering were not claimed, "Right up in front of the engine, on the pilot, you might say, seemed to be crowded up there."It is argued that the words "crowded up there" mean pain and suffering.But this is not so when the answer is considered, as it must be, in connection with the question asked.

It...