Wiley v. Rutland R. Co.

• Decision Date: 08 May 1913
• Citation: 86 Vt. 504,86 A. 808
• Court: Vermont Supreme Court
• Parties: WILEY v. RUTLAND R. CO.

86 A. 808

86 Vt. 504

WILEY

v. RUTLAND R. CO.

Supreme Court of Vermont. Windsor.

May 8, 1913.

Exceptions from Windsor County Court; Fred M. Butler, Judge.

Action by Lucinda E. Wiley against the Rutland Railroad Company. Judgment for plaintiff, and defendant excepts. Reversed and remanded.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, for plaintiff.

E. W. Lawrence and T. W. Moloney, both of Rutland, for defendant.

WATSON, J. The plaintiff's evidence tended to show that she, a passenger on the defendant's westward train arriving in Ludlow about 8:30 o'clock in the morning, alighted from the train and walked westerly along the station platform to the west end thereof, and then in the same direction along the south side of the track to a point opposite a flight of stone steps, situated on the northerly side of the track leading down the bank to the public street by which the railroad was there paralleled; that these stone steps are on the land of the railroad company, and with a path across the track and along the south side thereof constitute the usual and customary approach to the station platform for passengers on foot coming from and going to the highways in the village of Ludlow, and have been so used for more than 40 years; that the plaintiff was traveling in this path toward the stone steps when injured; that, when she arrived at the point in said path on the south side of the track almost opposite the stone steps, she halted, looked up and down the tracks; that she saw the train from which she had just alighted standing beside the platform, and saw standing still on the track a freight train, the rear end of which was, as stated by one witness, about 20 feet westerly of the path across the track to the stone steps, but according to plaintiff's testimony it was much farther away; that seeing the two trains as stated, and "thinking the coast was clear," she "made a quick pass to go across" the track in the path toward the steps, and as she stepped upon the track the freight train was suddenly started backward, without warning of any kind that it was about to be moved, the rear car, striking her, knocked her down, ran over and cut off her right arm; that some of the passengers who arrived at the station on the same train with her crossed the track before her, and some were coming toward the place of crossing behind her; that when injured she was 66 years of age, had been troubled a little more or less with deafness for 40 years, but at times could hear as well as any one, and when traveling on cars could hear conversation plainly from one end of the car to the other, and could have heard a whistle blow at the time of the accident had one been blown; that she had more difficulty in hearing in the left ear than in the right, and sometimes used a trumpet; that she had been to Ludlow by train many times in the last 50 years, followed the same course (path) at the station as on the day of the accident, and she testified, without objection, that on that day she was "exceedingly" careful.

The defendant's evidence tended to show that the freight train was not standing still during the time the passengers were leaving the other train and the platform, but was backing at a speed of about six miles an hour toward the station on the same track there occupied by the passenger train, from a point several hundred feet westerly thereof, the conductor being on the back platform of the rear car to give warning; that the plaintiff was walking beside the track towards the stone steps, and, when the train was a short distance from her, she, without looking, started to cross the track, whereupon the conductor shouted to her, but, as she did not heed the warning, he then endeavored to get down the steps and push her off the track, and, seeing he could not do so, he jumped off the train and signaled the engineer to stop; that the engineer could not then stop the train in season to avoid hitting her. The defendant moved for a verdict on the grounds, among others, that upon the evidence the accident occurred through the contributory negligence of the plaintiff, and that upon all the evidence there was no issue for the jury. Was the overruling of this motion error? is one of the questions before us.

It is said that the plaintiff, as a witness, testified that the only time she looked up the track and saw the freight train was when she was some distance easterly of the point opposite the stone steps—within a few steps of the platform—and consequently, notwithstanding other evidence introduced by her, tended to show her looking at that train when she was almost opposite the stone steps, her own testimony in this respect being as to a matter within her own knowledge, was in the nature of a judicial admission, and therefore, as against her in this case, of conclusive effect. But this is overlooking the distinctive characteristics of judicial admissions made by a party, or his attorney, in court, on the trial of a cause. Such admissions are formal acts done for the purpose of dispensing with the production of evidence by the opposing party of some fact claimed by the latter to be true, and are of conclusive effect, unless relieved against in the discretion of the court. United States, for Use of Lyman Coal Co., v. United States Fid. & Guar. Co., 83 Vt. 278, 75 Atl. 280; Wigmore on Ev. §§ 1057, 2590. The statement here claimed by the defendant to be conclusive against the plaintiff constituted a part of her testimony as a witness on the trial of the cause. Considered as a statement against her interest, it was not an admission, distinct and formal in character, nor was it made for the purpose of dispensing with the formal proof of any fact at the trial. It was not therefore in the nature of a judicial admission, having conclusive effect in law. It has been held by this court that admissions made by a party in giving testimony as a witness on the trial of a cause are not controlling against him, as a matter of law, when shown by the opposing party on a subsequent trial of the same cause. La Flam v. Missisquoi Pulp Co., 74 Vt. 125, 52 Atl. 526. Neither are they, being informal, conclusive in law on the trial at which the party gives the testimony. Matthews v. Story, 54 Ind. 417; Shepard v. St. Louis Transit Co., 189 Mo. 362, 87 S. W. 1007; Zander v. Transit Co., 206 Mo. 445, 103 S. W. 1006; Wigmore on Ev. § 2594; Chamberlayne on Ev. §§ 1263, 1264.

It is argued that, with the plaintiff's knowledge of the conditions at Ludlow station; she was aware that the freight train must back up to let the other train pass, as there was no siding west of the station, affording a means of such passing, and that, having an impairment of hearing, to go upon the railroad track without taking further notice of the freight train should be held, as a matter of law, to be contributory negligence, preventing recovery. This position is taken, relying upon the well-established rule in this state requiring a person about to cross a railroad track to look and listen for an approaching train and to stop to listen, if necessary, to make his listening effective, and to be specially vigilant respecting listening if his vision is obstructed, and respecting his vision in case of impaired hearing, continuing as long as the discovery of a train will enable him to avoid injury.

Yet this rule in all its strictness is not applicable to the case before us. Here the plaintiff, as a passenger on one of the defendant's trains, had just alighted at the station of her destination and was leaving the station to go to the public highway on the opposite side of the railroad, by crossing the defendant's tracks and its premises in the path and by the stairs, accustomed to be used by passengers walking to or from defendant's station for more than 40 years. Indeed, the evidence showed an implied invitation by the railroad company to such passengers to go to and from the station over this course. There can therefore be no doubt that, under the laws of this state, the defendant was in duty bound to do what was reasonably necessary to insure the safety of passengers thus going to or leaving this station. Beard v. Conn. & Pass. Rivers R. Co., 48 Vt. 101; Hale v. Grand Trunk Railroad, 60 Vt. 605, 15 Atl. 300, 1 L. R. A. 187.

When the plaintiff, after alighting from the passenger train and when walking on the south side of the tracks toward the usual place of crossing them, saw the freight train standing still on the track some distance westerly, all within the tendency of her evidence, she had a right to assume that her safety in crossing the tracks would not be endangered by the backing of that train while she was so doing, and she was not, as a matter of law, guilty of contributory negligence in not again looking at it or in not keeping a constant lookout. While the plaintiff was bound to exercise due care according to the circumstances, her watchfulness would naturally be diminished by her right of reliance upon the company's discharge of its duty to passengers to exercise reasonable diligence in providing them a safe passage to and from its trains.

Whether, in the circumstances of this case, she exercised due care was a question for the jury, and in overruling the motion for a verdict there was no error. Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241; Terry v. Jewitt, 78 N. Y. 338; Besecker v. Delaware, Lackawanna & Western R. Co., 220 Pa. 507, 69 Atl. 1039, 123 Am. St. Rep. 714, 14 Ann. Cas. 21; Weisenberg v. Lackawanna & Wyoming Valley R. Co., 237 Pa. 33, 85 Atl. 74; Atlantic City R. Co. v. Goodin, 62 N. J. Law, 394, 42 Atl. 333, 45 L. R. A. 671, 72 Am. St. Rep. 652; Rodick v. Maine Cent. R. Co., 109 Me. 530, 85 Atl. 41; Atchison, Topeka & Sante Fé Ry. Co. v. McElroy, 76 Kan. 271, 91 Pac. 785, 13 L. R. A (N. S.) 620, 123 Am. St. Rep. 134; Tubbs v. Michigan Cent. R, Co., 107 Mich. 108, ...