Bryant v. Central Vt. Railroad , 56 Vt. 710 ( 1884 )

The opinion of the court was delivered, by

Koyojs, Oh. J.

The first exception urged by the defendant is to the exclusion of the testimony of its roadmastcr, as an expert, as to whether McNulty, the defendant’s section man, who had_ charge of the section where the fire originated, was “a careful, prudent, and attentive man ” in the discharge of his duties. It is claimed that the evidence offered was admissible upon the question of whether the defendant used “ all due care and diligence” in its management of the railroad.

The rule laid down in Pierce on Hailroad Law, 296, and abundantly sustained by authority, excludes expert evidence on matters equally within the knowledge of the jury, or of unskilled persons, or on the ultimate fact to be found by the jury; and various instances are there cited, which, in principle, exactly meet this case. The character of McNulty for care, prudence, and attention in the discharge of his duties, must be decided upon the evidence of his acts; and upon these the jury were quite as competent to form an opinion as any expert could be. Besides, general evidence of care and prudence at other times would have no tendency to prove care in the particular instance. Gahagan v. Boston & L. R. R. Co., 1 Allen, 187.

These principles and reasons are equally fatal to the exceptions taken to the exclusion of evidencie as to the cutting and management of the weeds and vegetable growth on the margin of the j'oad in other years, and as to the suitable and proper time for burning the same. It would certainly be difficult to find more competent “ experts ” on the question of the proper time and circumstances for the burning of vegetable refuse than will be found on Vermont juries.

The defendant’s seventh request embodies a proposition manifestly unsound. It is radically inconsistent with the established legal definition of negligence, that it should be proved or disproved in the particular case by evidence of the custom of other persons or corporations, whether prudent or otherwise, under similar circumstances, or by speculations and inferences as to what they would have done in the case on trial. The Supreme Court of the United States, in Railroad Co. v. Jones, 95 U. S. 439, defined negligence to be “ the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation,-or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.” The issue is thus necessarily confined to what the circumstances and exigencies of the particular occasion really -were, and what the defendant actually did or omitted to do with reference to them. These facts being shown, it is the' exclusive province of- the jury to find whether the course pursued was negligent or other-w-ise, under proper instructions from the court as to what in law constitutes actionable negligence. In the instructions of the court upon this point we find no error; and we think they were substantially in exact accordance with the rule cited by the defendant in Pierce on Railroad Law, 310.

We think the defendant’s eighth, tenth, and twelfth requests were complied with as far as the authorities would warrant; and that the charge of the court upon the subject, covered by them —contributory negligence — was in accord with the principles laid down by this court in Trow v. Vermont Central R. R. Co. 24 Vt. 487, and other authorities, many of which may be found collated in Pierce on Railroad Law, 326 et seq.; even going further than perhaps in strictness the defendant could ask, where, upon page 8 of the stenographer’s transcript of the charge, the jury were instructed that, “ If the plaintiff was also negligent in regard to the condition his land was then in, in the same respect, and that condition contributed in any degree to the production or causing of this injury, he cannot recover.” See Pierce on Railroad Law, 435. The judgment is affirmed.