Boston & M. R. R. v. Daniel , 298 F. 84 ( 1924 )

MAYER, Circuit Judge

(after stating the facts as above). [1] We shall not again review the testimony bearing on the questions as to whether or not the road and crossing were a public highway and a public crossing, or the additional testimony presented on this trial. We think the additional testimony added.nothing as matter of law, and that the sole question which should have been sent to the jury was that numbered (2) supra.

In the event that other cases of a similar nature'arise, we point out that it was error-to instruct the jury:

“From the year 1849, to the year 1886, the selectmen did not have the authority to lay out a public highway across a railroad at grade without the permission or consent of the railroad. If you find that the railroad erected and maintained at this crossing, for a long time after it was built, a signboard on two posts with the words, ‘Look Out for the Engine,’ painted on the board, and that the defendant’s engines whistled at that crossing, then you can infer from these facts that the railroad company did give its permission and consent to laying out and constructing a public highway across the railroad at grade.”

In the cases where, under Vermont law, the railroad’s consent is necessary in regard to laying out and constructing a public highway across the railroad at grade, the jury should not be summarily instructed that it may infer that the conduct referred to amounts to permission or consent. Assuming other relevant acts, such as laying out, to be present, it is for the jury to decide whether the acts of the railroad amounted to permission or consent to laying out and constructing a highway crossing the railroad at grade, and the jury should be so instructed.

In respect of the common-law duty of defendant below on the assumption that the road was a private road, the court charged accurately and in strict accordance with what was held in (C. C. A.) 290 Fed. 916.

The charge put the matter before the jury quite differently than was done on the previous trial. In that case, the statutory obligation of defendaht which it owed, in the event that the road was found to be a public highway, was so intertwined with the common-law duty, in the event that the jury found that the road was a private road, that we regarded the errors as prejudicial.

At the former trial, just before the court charged the common-law duty, it laid down anule of absolute liability with no qualifications, as will appear from the extract in page 917 of 290 Fed., which need not again be quoted.

On this trial, however, the court was careful to make plain the separate theories of recovery and the rights and obligations in the different circumstances. After having charged as to the public highway question, the court said: ■

“If you fail to find that the road was a public highway or the crossing a public crossing, as defined, or that the failure of the defendant.to ring the bell or blow the whistle was the cause of the accident—in other words, that the accident would have happened just the same if the bell had been rung or the whistle blown—or if you fail to find that the railroad gave its permission or consent to the laying out of a public crossing over its railroad at grade as defined, the plaintiff cannot recover on this theory of her case, and you will proceed to consider the other theory of her case, which is the second principal question. Have I made this theory plain to you, gentlemen?

“If the road leading over the crossing was a private road, and' the crossing a private crossing, was the defendant negligent under the common law in running its engine over the crossing 'at the speed and in the way and manner it did, and did such negligence cause the death of Hr. Daniel?”

Then followed detailed and correct instructions as to common-law liability.

There was abundant evidence of failure by defendant in the performance of its common-law duty, and we think that the errors in respect of the public highway question were not of such prejudicial character as to call for a third trial.

Judgment affirmed.