McDuffee's Admx. v. Boston & Maine Railroad , 81 Vt. 52 ( 1908 )

Miles, J.

The defendant in its brief assigns five grounds of error the first of which is, that the court below erred in overruling its motion for a verdict. This ground is divided into several subdivisions denoted by the capital letters of the alphabet, beginning with “A” and ending with “F” inclusive. Under division “A” the- question arises, whether there was any -evidence in the case tending to prove that the plaintiff’s intestate was in the service of the defendant at the time of the accident. If there was any such evidence, it is to be found on pages 7 to 36 of the exceptions inclusive.

From an examination of that evidence we are convinced that there was testimony that some person or corporation operated the water tank and spout in question to supply water for engines running through Lyndonville to Newport upon a line of railroad operated by such person or corporation, which ran past a station at Newport, along the east side thereof, having tracks and a bridge known as the “Boston & Maine tracks” and the “Boston & Maine bridge”; that on the opposite side of those tracks from the station, and near to them, was the water spout from which the plaintiff claims that the intestate received a fatal injury from which he afterwards died, and that at the time of his injury he was the servant of the person operating that spout.

There was no positive testimony in the case, which in terms stated that the defendant was the person or corporation operating the road or employing the intestate; but such person or corporation is mentioned' by the attorneys of both parties, as well as by their witnesses, all the way through the trial, as “the railroad” or as “the railroad Co.,” and not as a railroad or a railroad Co. The natural meaning of the expression used would indicate that they were referring to some railroad company then under consideration or discussion, and not generally to any railroad company. The only railroad company then under discussion was the defendant. This being so, the jury had a right to understand that when the witnesses and parties spoke of “The railroad company” they meant the defendant. The evidence therefore, had a tendency to prove that the defendant operated the water spout in question and that McDuffee was its employee.

This holding disposes of defendant’s 9th, 10th and 11th grounds stated in its motion for a verdict and its 5th, 6th, 7th and 33rd requests to charge.

Under division “B,” the question is raised whether there was any evidence of negligence on the part of the defendant. The evidence upon this point tended to show that the water spout when raised to its highest position, was so near the ear that it would have hit a man of ordinary height, if he stood upon the top of it, a foot or more to one side of the running or center board, and that a man on top of the car signaling a train was forced to dodge the spout in order to avoid being hit by it. If such a dangerous structure could have been reasonably avoided it was the duty of the defendant to have done so, and to have placed this water spout at a reasonably safe distance from the track, so as not to endanger its servants who worked on its trains. Morrisette v. C. P. R., 74 Vt. 232, 52 Atl. 520; Choctaw O. & G. R. R. v. McDade, 191 U. S. 68; U. Pac. Ry. Co. v. O’Brien, 61 U. S. 451; Johnson v. St. Paul (Minn.) 41 Am. & Eng. R. R. Cases 293; Allen v. The R. R. Co. (Iowa) 5 Am. & Eng. R. R. Cases 620, and Chicago & I. R. Co. v. Russell, 91 Ill. 298. The foregoing cases rest upon the well established principle, that it is the duty of the master to furnish a reasonably safe place in which the servant is to perform his duties. The defendant, however, contends that there is no evidence tending to show but that the tank and spout were placed at a reasonably safe distance from the railroad track, in that the plaintiff has failed to produce any evidence tending to show that it could have been maintained at a safer distance at that place and have been reasonably useful for the purpose for which it was constructed. Assuming, but not deciding, that it was necessary for the plaintiff to show that the tank and spout could have been constructed and maintained in a safer manner at that place, the fact that the case discloses evidence showing the construction, general surroundings and location of the spout, made it necessary and proper for the court below to submit it to the jury for them to say from all that evidence, whether it was negligence on the part of the defendant to maintain it where and as it was at the time of the injury. That was the legitimate and proper evidence from which that fact was to be determined, and •the defendant’s argument upon this point is not supported by the facts.

Under this division the defendant discusses its requests, numbers 1, 2, 9, 10, 11, 12 and 13. No useful purpose can be ¡served in disposing of these requests separately or with any great particularity. It is enough to say, that we think they were complied with so far as they were justified by the evidence and required by the issues legitimately raised in the case.

Under division “C” the question is raised whether the risk was assumed by MeDuffee. If it was one of the ordinary risks incident to his employment, it was assumed when he entered ■the service of the defendant; and if it was an extraordinary one .and which he had had an opportunity to ascertain and had in fact ascertained and comprehended its dangerous character, and continued in the defendant’s service after ascertaining that fact, he also assumed that risk; but we think that risk was not an ordinary one which he assumed upon entering the defendant’s service. It can well be said of this danger as it was .said of a similar structure, in the case of Choctaw O. & G. R. R. v. McDade, 191 U. S. 68. “Its maintenance under the circumstances was negligence upon the part of the railroad company.” Existing as it did through the wrong of the defendant, it was ■an extraordinary risk and the intestate did not assume it unless he knew and comprehended the danger, or in the eircum■stances of the case will be taken to have known and compreliended it. Dunbar v. C. V. R. Co., 79 Vt. 474, 65 Atl. 528; Shattuck, Admr. v. C. V. R. Co., 79 Vt. 469, 65 Atl. 529. The burden of proving that MeDuffee did not know and comprehend the danger, rested upon the plaintiff, and unless there was evidence in the casé tending to prove that fact, the verdict ■should have been directed; Dunbar V. G. V. R. Go., supra.

We think there was evidence tending to prove that fact. MeDuffee had never been over this road north of Lyndonville to Newport but twice before the accident, and there was no ■evidence in the case that he had ever before passed this tank and water spont which was so near that it was dangerous, and yet so far away that the danger was not obvious without measurement or careful inspection. It was in its nature a trap. Morrisette v. C. P. R. Co., 74 Vt. 232. The defendant lays much stress upon the fact that the spout was open and plain to be seen for quite a long distance before reaching it; but this is not the controlling fact. While the tank and spout could be plainly seen, the danger could not, and herein lay the mischief. Its apparent safety lulled the servant into fancied security, while the danger could be discovered only too late to be avoided. McDuffee’s business was such that it did not require him to measure or inspect the spout and ascertain its distance from the top of a car, and therefore the natural inference wopld be that he did not do so. These facts, therefore, would be evidence tending to prove that he knew nothing of its danger; and if he had gone past it on his two previous trips, having passed it safely on those trips, he had no occasion to measure or inspect it, but had the right to rely on the presumption that the defendant had performed its duty and had provided a safe place for him in which to perform his services.

Under this division the defendant’s attorneys 'discuss the 8th request. We think that .request was fully complied with so far as it stated the law upon that subject.

Under division “D” the question is raised whether McDuffee was guilty of contributory negligence.

The ground upon which the defendant claims that MbDuffee was guilty of contributory negligence is, that he was not looking in the direction in which the oars were moving at the time of his injury, and because he stood at one side of the running or center board on the top of his car. There were no facts or circumstances in the case from which it could be said that, as matter of law, McDuffee was required to look in the direction in which the car was moving to discover dangers such as this was. While the evidence in the case tends to show that the running or center board is placed upon the ear for the convenience of the brakeman, it does not show that it is there as a limitation of the place to which the brakeman is confined in the performance of his duties which, call him to the top of the car; but on the contrary, it tends to show that some of his duties call him outside of that limit, especially in signaling trains, as appears in the testimony of one witness, at least, who was forced to dodge this spout in passing it when signaling the train to avoid being struck by it. The motion for a verdict upon this ground was properly overruled.

Bequests 3, 4, 14, 15, 16, 17 and 18, which were based upon the same question as that raised in division “D,” were complied with by the court below as far as the facts in the case and the law warrant.

Under division “E” the defendant claims that there can be no recovery, because the accident was the result of the neglect of a fellow servant who last used the spout. This position is not well taken, for the evidence does not support it. The plaintiff relies wholly upon the neglect of the defendant in maintaining the tank and spout as they were maintained, and her evidence tends to show that the injury was the result of their negligent maintenance and not in their use. No question of fellow servant was raised in the case, and no error was cpmmitted by the court below in refusing to direct a verdict upon this ground.

Under division “F” the question is raised whether there was sufficient evidence to support a finding that the death of McDuffee was the result of the alleged accident. Upon this point the defendant has brought to the attention of the Court a large part of the evidence given by the medical experts and asks the Court to weigh the same, and, if in their judgment it is found to be insufficient to support a finding that death resulted from the alleged injury, to direct a verdict for the defendant on that ground. The rule, that, if there is evidence supporting the claim of the plaintiff, the Court will not direct a verdict for the defendant, is so firmly established in this State by repeated decisions, that the citation of authorities is unnecessary. In this case there was evidence tending to prove that death resulted from the alleged injury. It shows that on the afternoon of the accident and not long after it occurred, McDuffee complained to the plaintiff of a severe pain in his side, and said “his side felt queer, funny, funny feeling in his side.” On his return trip to Lyndonville the afternoon of the accident and not long after it, McDuffee said to a fellow trainman, that he “felt rotten.” The medical witnesses, who were found by the Court to be qualified as experts, testified in substance that, in their opinion, the injury probably caused the death of McDuffee, and Dr. Allen in answer 'to the hypothetical question testified: “Assuming those facts, he received the injury when he fell upon the car.” The injury referred to in Dr. Allen’s answer above was the injury which caused the death of McDuffee.

From this testimony of the experts, in connection with the evidence upon which they base their opinion, it cannot be successfully maintained that there was no evidence tending to prove that McDuffee’s death resulted from the alleged injury received at the water spout.

The charge of the Court fairly complied with the defendant’s requests 24, 25, 26, 27 and 28v so far as they stated the law, and no error is found upon this point.

n.

The second ground of error assigned by the defendant is based upon the Court’s refusal to charge as requested in its thirty-four separate requests. We have already considered and disposed of all of them, except requests 30, 31 and 32, in our treatment of the defendant’s first ground of error. Request 30 related to an alleged variance in counts 1, 2, 3, 4, 5, 7, 8, 9 and 10, in that in those counts it was alleged that the deceased was walking when he received the injury, while the evidence was that he was standing still when he received it. The defendant’s counsel argue that the court should have charged in this respect as requested, because the variance was material; that it was material because, if McDuffee was doing nothing and was standing still, he had greater reason to be looking out for danger than he would have had if he was engaged in any duty requiring his attention to be given to other matters. A full answer to this argument is, that the evidence does not warrant the assumption that he was doing nothing but standing still, for the witness, Belle Villeneuve, testified, that McDuffee wias signaling the train at the time of the injury; besides he was not required to exercise diligence to discover dangers which were the result of the defendant’s negligence. The .variance claimed by the defendant, at most, was only an immaterial difference and therefore not a variance; for a variance means material difference. State v. Briggs, 1 Aik. 226; Skinner v. Grant, 12 Vt. 456.

Bequests 31 and 32 related to a variance in counts 7 and 8, and as the defendant has not pointed out in what respect such alleged variance is material, and as we are unable to discover any materiality in such alleged variance, we cannot assume that it was error for the court below to refuse to instruct the jury as requested. What the Court said in Dano v. Sessions, 65 Vt. 79, 26 Atl. 585, may well be said here: “The exceptions must show that the particular variance relied'upon was pointed out to, and passed upon by the county court. To the same effect is Morey v. King, 49 Vt. 304, and Holdridge v. Holdridge’s Est., 53 Vt. 546.

III.

The third ground of error assigned is based upon the charge of the Court, and is divided into several subdivisions denoted by the capital letters of the alphabet, beginning with “A” and ending with “I” inclusive. We deem it unnecessary to enter into a discussion of the various refinements called to our attention in these numerous exceptions to the charge of the court below, as we think the court below correctly and fully stated the law as applied to the facts of this case, and that in this respect there was no error, nor was there any error in the court’s refusal to require the plaintiff to elect upon which count she would rely, for she was entitled to recover upon both. Ranney, Admr. v. St. J. & L. C. R. Co., 64 Vt. 277, 24 Atl. 1053.

IY.

The fourth ground of error alleged relates to the admission and exclusion of evidence. Several exceptions were taken to the admission and exclusion of evidence during the trial, but as the defendant discusses in its brief only one exception, we direct our attention only to that one. That exception related to a hypothetical question put to Dr. Allen. The exception was based upon the assumption that there was no evidence laying a foundation for such a question. In the earlier part of our opinion we have pointed out that there was such evidence showing that McDuffee did receive such injury at Newport as the question assumes, and therefore there was no error in overruling the objection and admitting the answer.

Y.

The fifth alleged ground of error was to the argument of counsel for the plaintiff. In opening he referred to what the defendant might and could have proved, by evidence peculiarly in its possession, to which counsel for the defendant objected. The court cautioned him about the advisability of following that line of argument, and after a little discussion concerning the propriety of such an argument, he said: “If I hadn’t thought it was a legitimate line of argument I wouldn’t press it, but I feel strongly that it is.’’ The court thereupon permitted him to proceed and subject to the defendant’s exception, he said: “What do you say, does any presumption arise to them in regard to that, gentlemen, — that is all I want to say. Here is the defendant, here is the plaintiff, — what do you say if he had been up there at a previous time by that water spout or where he could have seen that water spout and its dangers to a man on top of a car, doesn’t it lie within their power to prove it?” The argument was clearly improper. The defendant had introduced no evidence in the case, but had rested when the plaintiff rested, and went to the jury on the case made by the plaintiff, as it had a right to do. When it did so, no-adverse presumption arose because of its omission to introduce any evidence on the trial. It is only when a party has introduced evidence upon an issue raised in the case by his own evidence, that a presumption arises against him for a failure to produce evidence peculiarly within his knowledge and possession. If, then, the argument was harmful, the judgment should be reversed. The argument was in substance, that McDuffee did not know of this danger, because he had never been past the spout in question, and as evidence of that face was peculiarly within the knowledge and possession of the defendant, and as it had not shown the contrary, their omission to do so was evidence that the intestate had not been there, and therefore did not know that this danger existed. The burden was upon the plaintiff to show that her intestate did not know of the existence of the danger. Dunbar v. C. V. R. Co., supra. Counsel attempted to establish this important fact by arguing a matter not in the case, but which would strike the mind of an ordinary jury as being a strong piece of evidence tending to show that the intestate did not on any former occasion go past this spout and, so, did not know of the danger. For aught we know, the jury may have found upon this argument alone that the intestate did not know of this danger. We think it was harmful, and for that reason the judgment below ought to be reversed. As this holding sends the case back for a new trial,'we do not consider the other exceptions to counsel’s argument, believing that what we have already said will be sufficient caution to counsel in this case to restrain them from exceeding the legitimate bounds of temperate argument in their treatment of the case at a future trial.

Judgment reversed and remanded.