Stebbins v. Central Vermont Railroad

[468] The opinion of the court was delivered by Veazey, J. It is not claimed by the defendant but that if the fire was burning on the plaintiff’s premises when he first learned of it, his neglect to try and stop it then, though constituting negligence contributory to the damages thereafter accruing, would prevent his recovery for the damages already accrued, to which his negligence did not contribute, but which resulted solely from the defendant’s negligence. The only point of exception now insisted upon by the plaintiff is to the charge of the court to the jury. We think the charge would be understood by the jury as the plaintiff’s counsel now claims ; that is, that if the plaintiff neglected to do what a prudent man would have done when he learned of the fire, it defeated his right of recovery for the previous as well as subsequent damages. The point that the defendant makes is, that there was no pretence at the trial below that the fire had reached the plaintiff’s premises when he was informed of it by Streeter, or that he had then suffered any damage, and insists that no claim can fairly and properly be made from the bill of exceptions that there was such claim. The plaintiff insists the other way, and properly appeals to the bill of exceptions, which is our only guide. We think the testimony of Streeter and the language of the court in the charge shows that there may have been such claim and that there' was some ground for it. Giving the construction to the bill of exceptions which we think it demands, the charge of the court was in conflict with the rule conceded to be correct independent of statutory provisions; to the effect that where the consequences of the defendant’s negligence have subsequently been aggravated by the want of ordinary care, or by the negligence of the plaintiff, this may go in mitigation of damages ; but it cannot defeat the plaintiff’s right to recover for the wrongs for which the defendant is responsible ; or in other words, that negligence on the part of the plaintiff tending merely to increase the damage suffered by him, is not a bar to an action as to the damage resulting from the defendant’s negligence before the contribution by the plaintiff. Wilmot [469] v. Howard, 39 Vt. 447; Shearman & Redfield on Negligence, section 32, and cases cited in notes; Wharton on Negligence, section 868 et seq., and cases cited in notes. Judgment reversed, and new trial granted.