Davis's Admx. v. Rutland Railroad

Rowell, C. J. This is case for negligence in causing the death of the intestate by means of an escaped freight car colliding with an engine that was being run by the intestate as defendant’s servant, hauling a passenger train from Rutland to Bellows Falls. The original declaration, which contained but one count, did not allege that the intestate did not know of the different breaches of duty therein alleged, and the plaintiff was allowed to file an amended count supplying that omission. It is objected that this was error, for that the original declaration showed no cause of action, and to amend by showing one, was to declare upon a new cause of action, which is not allowable. But there was something to amend by, and if the court was in doubt on inspection of the original declaration and the amended count whether the latter declared upon the same cause of action as the former or not, it could inquire dehors them, to ascertain how the fact was; and if necessary in order to support its action, we should presume it did inquire, and found that it declared upon — 29 — the same cause. Lycoming Fire Ins. Co. v. Billings, 61 Vt. 310, 17 Atl. 715. And besides, the test is, whether the proposed amendment is a different matter, or the same matter more fully or differently laid. If the latter, you can amend; if the former, you cannot. Daley v. Gates, 65 Vt. 591, 27 Atl. 193. Now here it is obvious on inspection that the amended count does not declare on a different matter, but on the same matter more fully and accurately laid, and so no error. The defendant moved for a verdict on the amended count, for that there was no evidence tending to show that the intestate did not know of the different breaches of duty therein assigned. The motion was overruled. Six breaches were assigned, but only four submitted to the jury. These were (1) not properly equipping said car, in 'that the brakes were defective, insufficient, and in a negligent and dangerous condition; (2) allowing the derailing device to be insufficient and misplaced; (3) not establishing rules and regulations for the government of employees in operating said device and having it in proper condition; and (4) not providing means for derailing cars that had escaped on to the main line, and for preventing them from doing damage. . But the court could not grant the motion, for that would have deprived the plaintiff of the opportunity of going to the jury on the claim that the defendant was negligent in not properly equipping the car in that the brakes were defective, insufficient, and in a negligent and dangerous condition, whereas the defendant practically concedes that the intestate neither knew nor can be charged with knowing the condition of the brakes in this respect, for it says in its brief that the uncontradicted testimony was that the intestate knew, or should have known, of all the risks, “except the alleged defective brake.” And this exception is justly made, for the car was a foreign car, and came into the defendant’s yard at Rutland only eight days before the accident, and was taken to East Wallingford three days later, and placed and loaded on a spur track, where it remained till the day of the accident, so that it is easy to say that the intestate knew nothing about the car nor the condition of its brakes. The defendant invokes under this motion the doctrine that the servant assumes the usual and ordinary risks incident to his employment, and applies it to the failure of the brake to work — 30 — and hold the car because the chain suddenly kinked, as its testimony tended to show, a thing that sometimes happens. But the motion did not raise that question, for such risks are assumed whether the servant knows of them or not, whereas the only ground of the motion is, absence of testimony to show want of knowledge on the part of the intestate. The defendant submitted ten requests to charge, covering practically the whole law of the case, and excepted to the refusal of the court to charge as requested, and to the charge as given on the subject-matter of the requests. This exception is too general and indefinite to be available. The defendant had a set of “standard rules” governing the operation of its road and instructing its employees, one of which was that “when cars are placed on a siding, the brakes must be set, and if on a grade, the wheels must also be blocked, and derailing switches, where in use, must be set to ground.” The defendant claimed that its duty to protect its main line from escaping cars and to make its derailing devices efficient by proper rules and regulations, had been fulfilled by promulgating said rule, and that its construction was matter of law for the court, and that the court should instruct the jury thereon, which the court did, and instructed that the rule did not apply to the situation presented in the case, but was made to apply when cars were placed on a siding to be left, and not for the purpose of passing over the track in shifting. The court said that it arrived at that construction from the language of the rule itself, but found it consistent with the conduct of the defendant and its employees in operating under it, and therefore further instructed that the testimony disclosed no rulé that was applicable to the case. The defendant excepted to this part of the charge, and contends that it was erroneous, for that the rule itself shows that it did apply to the case, and for that the testimony furnished proof of the understanding of employers as to the application of the rule, .and that as matter of fact it was understood to apply to just such a case as the shifting from the main line to a siding, and that in view of this evidence it was error to charge that the rule did not apply. But we think the court was right, for the car, with a brakeman on it, was shifted to the siding for the purpose of passing over it to be taken north in a train then waiting for it, and it — 31 — would have to pass over the derailing switch in the lower end of the siding, or the train would have to back over that switch to reach the car, and to block the wheels and set the derailer to ground in these circumstances would have so hindered and delayed the business in hand that it seems reasonable to say that the rule was not intended to apply in such a case; and if that rule did not apply, the testimony disclosed none that did apply. Anri especially do we think the court was right, for it found that its construction of the rule was consistent with the conduct of the defendant and its employees in operating under it, which amounts to finding that they gave it the same construction the court did; and there being doubt as to the meaning of the rule, this practical construction is entitled to great weight. And although, as claimed by the defendant, the testimony of one witness to which it refers tended to show that the employees understood that the rule applied to cases like this, and that it was in fact so applied, yet that is not controlling, for as the construction of the rule was submitted to the court, and the matter of practical construction was pertinent to the question, its finding of such construction is conclusive if there was evidence to support it, and it appears that there was, and it is not claimed that there was not. Cleveland v. Washington, 79 Vt. 498, 65 Atl. 584. As to not providing means for derailing ears that escape on to the main line, and for preventing them from doing damage, the court charged that it was the duty of the defendant to exercise the care and prudence of a prudent man to secure the reasonable safety of its ways in that regard, and that the jury would say whether it was negligent in not providing “other means” for arresting such a car than those that were available at the time of the accident; that the thing complained of was, that “other means” than those available were not provided; that it was said in argument that it was not the duty of the plaintiff to point out what other means should be used, but that it was the duty of the defendant to foresee what might happen, and provide means so that in case a runaway car escaped down over the grades above Rutland, there should be some means at hand to arrest its progress, and that that was the question to be considered under that ground: “Would a prudent man have provided some means other than those that were available for that purpose?” The court told the jury that it would not rehearse — 32 — the testimony bearing on that particular phase of the case, as they would have in mind what took place — the sending of the message from East Wallingford to the train.dispatcher at Rut-land; his wiring the station agent at Cuttingsville and at East Clarendon; the attempts made at those places to stop the car; the facts as to the switch keys not being in the hands of those agents; those things and others disclosed by the evidence bearing upon the question; which was not whether the station agents at those places were negligent, but whether the defendant was negligent in not providing “other means” than those that were available for arresting the progress of that car; that the defendant said that that could be done only by having some device in the form of a derailing switch in the main line, which could not be tolerated; but that it was suggested that “other means” might have been provided, and argued that the switch keys should have been in the hands of the station agents, so that they could use them readily for the purpose of making a derailment; that those were all matters to be considered as bearing upon the question whether what had been done by way of preparation for a possible accident of this kind was what a prudent man would have done under the circumstances; that if it was, the defendant would not be liable on that ground; but if the jury was satisfied that the defendant was negligent in not providing “other means” for stopping or derailing the runaway car, and that that negligence was the proximate cause of the injury, the defendant would be liable, if the other elements of the plaintiff’s case were made out. The defendant contends that this was error, for that no evidence had been submitted that any better means were in use by other railroads; nor that any other means would have been more effective; nor that it would have been practicable to provide other means; and that the jury was allowed to speculate as to whether any other and what means should have been provided, and permitted to consider whether some meaps suggested by counsel, or by their own ingenuity or folly, would not have prevented the accident. The plaintiff’s answer to this is, that there was no submission of any speculative means, but only of the issue made by the evidence without objection; that the plaintiff had shown that the station agents had been deprived of their switch keys, and that when the trouble came the dispatcher called upon them, helpless as they were, to derail the — 33 — ear any way they could; that the court submitted only the fact of the switch keys having been taken from the agents, and if that was not a proper issue for the jury, the defendant should have refrained from putting in evidence to sustain its side of it, and waived its right to make the claim now insisted upon when it allowed the plaintiff’s testimony to come in without objection. But the charge went beyond the matter of the switch keys having been taken from the station agents; and it would seem that the court so understood it, else it would have confined the charge to that issue, and not left the jury at liberty to inquire generally and at large, as it did, whether any and what other means should have been provided. And the charge went not only beyond that issue, but beyond the testimony in the case, for barring the matter of the switch keys, there was, as the defendant claims, no testimony that any better means were in use by other railroads, nor that any other means would have been more effective, nor that it would have been practicable to provide other means. This exception is sustained. As the questions presented by the exception to the admission of certain testimony, and the exception to the charge on the subject of damages, are such that they are not likely to arise again, they are not considered. Reversed and remanded.