Shumm's Admx. v. Rutland Railroad , 81 Vt. 186 ( 1908 )

Munson, J.

The plaintiff’s intestate was killed in the Wallingford yard, at the first crossing north of the station, on Sunday, the third day of January, 1904, about a quarter past five in the afternoon, while walking westwardly directly across the track, by a “wild engine,” coming from the south at .a great speed, called by one witness full sixty miles an hour, 'and without a headlight or any signal other than a whistle nearly half a mile south of the station. There had been a considerable fall of light snow the day and night before, and it was then very cold, with some wind from the north, and some snow in the air. The engine passed with sounds described as unusually loud, emitting clouds of smoke and steam which settled down and around it, and producing a jarring effect noticeable in houses near the crossing, but not noticed by a witness who stood on the west side of the crossing seven or eight rods from the track. Witnesses placed this in the edge of the evening — just about dusk — while it was light but not as light as in broad day; and spoke of the objects testified to as plainly visible.

The line of the railway through this yard is a long curve with the bend to the west. The station is south of the crossing, on the easterly or inner side of the curve. The distance from the crossing to the station is not given, but one witness gives the distance to the water tank as ten or twelve rods, and the station is said to be a little farther south. The size of the building does not appear. There is a side track east of the main track, extending from the station to and beyond the crossing, and east of the siding is a spur track, which ends thirty or forty feet south of the crossing. Along the east side of the spur is a loading platform five feet high. Estimates of the space between the main track and the siding range from five to ten feet. At the time of the accident there were three or four box cars on the siding south of the crossing, and two or three on the spur. The cars on the siding came' within about thirty feet of the crossing, and the nearest car on the spur may have been anywhere from ten to fifty feet further south. There is nothing to show how far the side of a box car projects over the rail. There was a pile of wood east of the platform, containing fifteen or twenty cords, which extended north of the platform to within ten or fifteen feet of the crossing, and was about eight feet high at the north end. Of the witnesses who gave their recollection of the number and location of the cars, one testified that the view of a person making a turn from the south onto the crossing would be so obstructed by the cars that he could not quite see to the main line, but that he could probably see down towards the depot between the cars; and another testified that a person four feet from the east rail of the main track could not see along that track to the south more than ten or twelve rods. The radius of the curve is not given.

A street runs north from the station alongside the yard, with houses on the easterly side facing the tracks. The deceased lived in one of these houses, a little distance north of the crossing, and was employed in shops just over the railroad near the end of the crossing. He had lived and worked in these places for twenty years, and had passed over the crossing four times a day nearly every week day during that time. There have been a few regular trains on Sunday, and occasionally an extra, for several years. The passing of trains usually produced' a jarring sensation in the vicinity of the crossing. The deceased was very deaf and had been so for at least thirty years. He could not hear ordinary conversation, but could be communicated with by one standing close to him and speaking very loudly. His son was accustomed to attract his attention by stamping on the floor. He could hear a railroad whistle near by, and knew of the passing of trains by the jarring sensation produced.

The railroad crossing is in a street which runs east and west, crossing the street running north from the depot substantially at right angles. On the occasion of the accident the deceased came up the street from the south, and turned to the left to go over the crossing. A witness who lived in the second house on the south side of the street running east, saw him from her window as he made the turn and approached the side track. She states that he wore a cap pulled down over his ears, and' was walking rapidly, and looking straight ahead. The witness watched him until he had crossed the side track and then looked south for the engine, and so was unable to. say whether he looked to the right or the left before coming to the main track. Another witness, who lived in the first house on the south side of the street running east, saw him for a second while sitting by her window, and looked away, fearing an accident. She described him as between the two tracks going straight ahead, and could say no more. The deceased’s cap had a flap that could be pulled down to cover the ears, and he was wearing it in that manner a few minutes before the accident. The cap was found the next morning between the main track and the siding, nearly nine rods north of the crossing, with the flap turned down. The body was found soon after, in a dispnembered condition, about a quarter of a mile from the crossing, on the same side of the track.

A verdict for the defendant was directed on motion at the close of the plaintiff's case.

■The general rules applicable- in cases of this character are well settled. One who is. about to cross a railroad track must look and listen for an approaching train, and must stop to listen if that is necessary to enable him to listen effectually. If his vision is obstructed he must be specially vigilant as regards his hearing. If circumstances are such that his hearing cannot be relied upon he must look with special care. He must continue to look and listen as he approaches, the track until the last moment when the discovery of a train would avail for his protection. Manley v. Delaware & Hudson Canal Co., 69 Vt. 101, 37 Atl. 279; Carter v. Central Vt. R. R. Co., 72 Vt. 190, 47 Atl. 797.

The plaintiff says it is to be presumed that the deceased was exercising the required care at the time he was killed; but the cases cited in support of this claim are from other states. The rule in this State puts the burden as to contributory negligence on the plaintiff. It is said in Walker v. Westfield, 39 Vt. 253, that to make a case upon which the plaintiff can safely rest he must submit evidence upon which the jury would be authorized to find affirmatively that no want of care on his part contributed to the accident. In Bovee v. Danville, 53 Vt. 189, the Court declared this to be the doctrine of all our cases, and expressly repudiated any language that might seem to indicate the contrary.

This Court has applied the rule in cases where death has resulted from an unobserved accident. In Hyde v. Jamaica, 27 Vt. 465, the intestate was drowned while attempting to drive through a stream at a ford-way. No one saw him after he. entered the stream, and there was nothing to indicate the particular manner in which the accident occurred. It was assumed in disposing of the case that the intestate was not in fault in attempting to cross the stream. But it was considered that the law required the exercise of due care while in the stream, and that this could not be presumed, but was a fact for the plaintiff to establish.

But it is not necessary that the evidence be that of an eye witness. In Lazelle v. Newfane, 69 Vt. 306, 37 Atl. 1045, the plaintiff was so injured that he lost all recollection of what occurred, and the person riding with him was killed. The accident occurred on a bridge, and the injuries were caused by going over the log which formed a guard rail on the side of the bridge. The plaintiff had a gentle, manageable and safe horse, with which he was familiar, and was driving towards the bridge on a walk when last seen. The wheel tracks showed that the horse came upon the bridge properly, and then cramped the wagon and backed it against and over the log. The court considered that these circumstances were evidence tending to show that the plaintiff was in the exercise of due care. The opinion says that from these facts “the jury might well infer that the plaintiff, presumably possessing the common instincts of self-preservation, did not contribute in any degree to the accident.” The writer of this opinion dissented in that case, but his dissent failed to be noted. It would seem, however, upon a review of the opinion, that the clause quoted does not refer to a presumption in aid of the finding that the plaintiff was driving with due care, but to a presumption that the plaintiff, when suddenly imperiled by the backing of the horse without his fault, did all that he could to save- himself. This view relieves the opinion of any erroneous suggestion that might otherwise be found in it. It certainly was not intended to limit the opening proposition of the opinion, that the burden was on the plaintiff to show that he was not guilty of contributory negligence in any degree.

The Lazelle case was cited in Boyden v. Fitchburg R. R. Co., 72 Vt. 89, 47 Atl. 409. In that case the intestate and his three companions were killed while attempting to cross a double-tracked road after the passage of a train on the nearer track, by a train coming from the opposite direction on the farther track. It was stated at the outset that the burden was on the plaintiff to show that the intestate and his companions were not guilty of contributory negligence. But in passing upon defendant’s motion that a verdict be'directed for a failure in this respect, after referring to evidence which tended to show that the track could have been seen in the direction of the approaching train for a considerable distance, the court said: “It may be reasonably inferred from the circumstances, taking into consideration the disposition of persons to take care of themselves and avoid injury, that, while waiting for the freight train to pass, and until they started along, the decedent and his companions looked and listened to guard against any west-bound train which might be approaching on the northerly track.” This follows the Lazelle case as it might naturally be construed, but is clearly inconsistent with our established doctrines. The instinct of self-preservation cannot be made the basis of a presumption that due care was exercised, where the burden of proving due care is placed on the plaintiff. Nor do we consider this instinct entitled to a recognition inconsistent with our rule. The presumption that one who realizes his peril will do what he can to save himself, is quite different-from a presumption that one will be prudent and not incur danger. A multitude of accidents result from the occasional carelessness of people who are generally prudent. ‘ ‘ The careless act usually precedes the moment when the natural instincts of self-preservation are aroused.” Chase v. Maine Cen. R. Co., 77 Me. 62, 52 Am. Rep. 744. Moreover, the requirement of due care cannot be satisfied in this jurisdiction without looking and listening, and the performance of this duty cannot be inferred from the fact of opportunity without relieving the plaintiff from the burden of showing the required care. We could not follow the courts which make an exception in cases where the injured party is killed and there is no evidence regarding his conduct, without departing from -the holding in Hyde v. Jamaica. But if the views expressed in the Boy den case were held to be consistent with our decisions, the application made of them could not be sustained; for there were witnesses in that case who saw the occurrence, and all the authorities hold that there is no room for a presumption of due care where there is direct evidence on the subject.

We conclude, therefore, that there is' no presumption that plaintiff’s intestate was in the exercise of due care, and that the case must be disposed of on the evidence submitted. The intestate was under observation as he approached the track, and almost until the moment of the accident. The undisputed testimony is that he wras walking rapidly and looking straight ahead as he passed along the crossing, and that when last seen he had entered the space between the siding and the main track, and was still looking and walking straight ahead. There is no circumstance disclosed by the evidence that tends .to. show that he was mindful of the risk incurred.

• It is claimed further that the view was so obstructed by the cars, and the speed of the engine so great, that if the deceased had looked for a train his looking would have been of no avail. This leaves out of consideration the fact that the deceased, very hard of hearing at best, had his cap pulled over his ears. But the question will be taken up independently of this circumstance. It is said that if the deceased had seen the engine he would not have had time to get off the track. . The question is rather whether he could and should have seen the engine in time to have kept off the track. The deceased was familiar with every feature of the situation. The case leaves the side-track to the north unobstructed; so the last look should have been to the south. The deceased’s movements were not dependent on the control of a team, and the arrest of his forward movement could have been practically instantaneous. There is no evidence that brings the end ear on the siding nearer to the crossing than thirty feet. Here we are met by the fact that there is no evidence as to the degree of the curve. The only evidence in the case that covers this point, and thus completes the description of the location, is the testimony of two witnesses who gave the position of the cars, and their judgment as to the distance a person approaching the track could have seen to the south. The witness most favorable to the plaintiff stated that in his judgment a person four feet from the east rail could not have seen down the track more than ten or twelve rods. The plaintiff ignores this evidence, and bases her claim wholly upon mathematical calculations in which assumptions supply the place of satisfactory information regarding the curve. But we have evidence sufficiently definite to enable us to use the estimate of the witness understandingly. If we treat the speed of the engine as sixty miles an hour — the highest estimate, and assume that a person walking rapidly covers four miles an hour — as is assumed by the plaintiff, the deceased would go one foot while the engine was going fifteen, or two and one-half feet — the ordinary step of a man walking rapidly, while the engine was going thirty-seven and one-half feet. Then if we assume that the deceased had just stepped over the east rail when struck, which is as far as the evidence can be claimed to indicate, the engine would have been seventy-five feet away when the deceased was four feet from the track, or two steps back from the position in which he was struck. Upon this basis, it would seem that the deceased must have taken the step preceding that which brought him over the nearest rail, with the engine in plain view. If instead of taking that step he had taken a step to the rear, he would have remained in safety. But this treatment of the matter is not presented as the basis of our conclusion. The niceties and assumptions of the calculation are not essential; for if the deceased, when four feet from the rail, could have seen the track for the ten rods estimated by the witness — one hundred and sixty-five feet, it certainly cannot be said that if he had been looking as he reached that point his prudence would have availed him nothing.

It is also claimed that a verdict cannot be directed in a case where the jury have been permitted to view the premises, inasmuch as the things they have seen are evidence, and may embrace matters that are not, and perhaps could not be, included in the case as sent up. "We cannot accept this view. If there is nothing in the ease submitted to the court that tends to show an exercise "of care, or something that in law excuses it, the court will not reverse the judgment on the conjecture that the jury may have seen something not shown by the exceptions.

Judgment affirmed.