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E. L. Waterman and F. S. Platt, for plain- | not leave Rutland except for a drive during tiff. Hunton & Stickney and O. M. Barber, one day and back at night, without letting for defendant.

me know, and that she or some member of

her family, shall see or hear from me, at HASELTON, J. This is an action of as- least once in every twenty-four hours as for sumpsit. The facts were found by a referee, a long time past, when I have been in Rutwho reported that there was due the plaintiff land-unless I shall at any time release them on the 29th day of September, 1903, the sum from doing so. Also she must promise me of $6,921.68. The county court rendered that she will not rent or allow to be rented judgment for the plaintiff for $2,065.71, with any room or rooms in her home, either to interest thereon from September 29, 1903. any family or for the storing of any goods The plaintiff excepted, claiming that she without my consent. If she promise all this, should have had judgment for $6,921.68, I agree that this sum shall be paid to her with interest from the date last named. next after my funeral expenses, and that at Whether or not judgment should have been the same time, and in the same way shall for the larger of the two sums named de- be paid to her a sum sufficient to pay the pends upon the construction of an instru- | three mortgages on her land. One held by ment in writing which will presently be set H. H. Dyer of $3,200.00, one held by B. F. out in full. Frances P. Everts was a widow Dunklee of $500.00, and one held by the lady residing in Rutland. The plaintiff, Marble Savings Bank, of $750.00, together Jennie L. Porter, who had a husband and with whatever interest, taxes and insurance children, was the niece of Mrs. Everts. The may be then due. So that she may have relations between Mrs. Everts and her her home free from debt, if she so chooses. niece, and the Porter family generally, were I also leave with Jennie, to dispose of, in of a very friendly character, and so remain- her own family and wherever I shall direct ed until the death of Mrs. Everts, September her, whatever of my furniture, books, pic29, 1903. Mr. Porter, husband of the plain- tures, clothes,' etc., which shall be in her tiff, received financial assistance from Mrs. house or in my possession when I die, and Everts at different times, and the plaintiff she shall not give up anything belonging to and other members of the Porter family me, to any one, at any time, except as I were in various ways of assistance to Mrs. shall direct her, for I want her to have Everts. In order to an understanding of what have been called my 'old duds.' I the written instrument referred to, we quote leave this as an obligation to whomsoever from the referee's report as follows: "Dur- shall settle my estate after my death, and ing her frequent sicknesses the last years no sums of money found charged to Ned of her life, Mrs. Everts was accustomed to or his children are to be deducted from this call upon the Porter family for their care,

Neither any bequest I may make. and I find that the different members of Frances Porter Everts." the Porter family always responded, and The body of the above instrument was that on some occasions the plaintiff stayed written by Mrs. Porter, but Mrs. Everts at with Mrs. Everts night and day. The plain- the time she signed and delivered it was in tiff, in order to assist in maintaining her full possession of all her faculties. At the family, canvassed to some extent for books, foot of the foregoing instrument is an unpictures, and other articles, and at times dated paragraph signed by Mrs. Porter, which rented rooms in her house to families and reads as follows: “I agree to faithfully perfor the storage of goods.” In these circum- form my part of the above agreement, and stances, Mrs. Everts, on the 9th day of Octo- that this paper may be destroyed at any time ber, 1899, signed and delivered to the plain- when Mrs. Everts shall consider any of its tiff, Mrs. Porter, the following written in- conditions broken by me, she to be the only strument: "Nutland City Hospital. October judge of my faithfulness, and my possession 9, 1899. I make this contract, or bargain, or of this paper to be proof that she is entirely agreement with my niece, Jennie L. Porter, satisfied with my discharge of the obligabecause I do not want her to go about the tions imposed upon me. Jennie L. Porter." streets, selling pictures, books, or anything The referee does not find when Mrs. Porter else (as she has done the last two or three signed, nor does he find that she ever signed years, and as she has commenced to do now, to the knowledge of Mrs. Everts, but he does for Mr. Brehmer), and so that I may feel find: “That the plaintiff after the 9th day of free to call upon her for such services as I October, 1899, ceased to go about the streets may need or want, and which she has for selling books, pictures, or anything else, and a long time rendered me, I agree to have that plaintiff notified Mr. Brehmer, on the her paid from my estate, after my death, evening of October 9, 1899, that she could such a sum as will pay her ten dollars a not canvass for him any longer; that the week during my life, whether I live one year plaintiff did not leave Rutland after October or ten. The first week for which she shall 9, 1899, without the knowledge and consent be paid to begin this 9th day of October, of the said Frances Porter Everts; that 1899, providing she shall tell Mr. Brehmer some member of the plaintiff's family saw or to-night that she cannot sell his book, and heard from Frances Porter Everts, at least


p. 9.

that the plaintiff thereafter rented no rooms , wise, and, as became her, she agreed to pay in her house to families or for the storage of generously. goods."

It is said in the brief for the executor that In view of the above and other findings of the paper signed by Mrs. Everts is a' suspithe referee, it is immaterial when the plain-cious document, and that the fact that the tiff signed the paragraph beginning, “I agree body of it is in the handwriting of Mrs. to faithfully perform.” It would be immate- Porter stamps her as a schemer, and "the rial if she never signed it. Her conduct concoction of her scheme" is mentioned. She from the 9th day of October, 1899, to the is spoken of as "inducing” Mrs. Everts to death of Mrs. Everts, four years afterwards, sign, but there is absolutely nothing in the was a full performance of the things re- case as presented to this court to warrant quired of her in the proposal of Mrs. Everts, these expressions. The final paragraph of the and carried with it an acceptance of the pro-agreement reads: "I leave this as an obligaposal, and a promise to perform. The close tion to whomsoever shall settle my estate relations of the aunt and niece continuous after my death, and no sums of money found up to the time of the death .of the former, charged to Ned or his children are to be de the direct way in which the things the niece ducted from this sum. Neither any bequest did and refrained from doing related to and I may make.” It is argued that this indi. affected the aunt, the fact that on two or cates that the provision of money to pay the three occasions Mrs. Everts made remarks to mortgages was in the nature of an attempted the effect that she had made provision where testamentary disposition of property, but its by Mrs. Porter would be well paid, showed bearing is the other way. The sum from that Mrs. Everts knew that her proposal had which nothing was to be deducted obviously been at least tacitly accepted, and that Mrs. included both the aggregate amount of the Porter had undertaken to perform on her $10 a week, for none of this was to be paid part, and was carrying out her undertaking, in the lifetime of Mrs. Everts, and the amount and with the other facts found compelled the necessary to pay the mortgages. All this, as finding of the referee as to the amount due Mrs. Everts made clear, was to be a contract the plaintiff. It is quite elementary that the obligation binding upon her estate, and the acceptance of a proposal may be communicat- language used was well calculated to prevent ed by conduct. Wald's Pollock on Contracts, any such contest as is here made.

Judgment reversed, and judgment for the The undertakings on the part of Mrs. Ev- plaintiff for $6,921.68, with interest thereon erts embodied in the first and second para- from September 29, 1903, and costs of suit. graphs of the instrument signed by her be- Let the judgment be certified to the probate came and are contract obligations binding up- court. on her estate. The third paragraph of the instrument, relating to the furniture, books,

(82 Vt. 24) pictures, clothes, etc., of Mrs. Everts, things left with Mrs. Porter, is no part of the con

DAVIS' ADM'X V. RUTLAND R. CO. tract, although it throws some light upon (Supreme Court of Vermont. . Rutland. Jan. the relations of Mrs. Everts and Mrs. Port

16, 1909.) er and the probability of the contract above 1. PLEADING ($ 238*) — AMENDMENT - NEW stated. That paragraph is in the nature of CAUSE OF ACTION. an attempted mortuary disposition of things declaration, if the court is in doubt, on inspec

Where it is sought to amend an original which she desired no stranger to her affection of the original declaration and the amendtions to have or use or handle, and while it ment, whether the amendment declares upon the shows, as is argued for the executor, that same cause of action, it may inquire dehors the written instrument in question is of a

them, twofold character, it shows with equal clear

[Ed. Note.-For other cases, see Pleading, ness that the point of division is at the close Cent. Dig. $ 623; Dec. Dig. $ 238.*] of the second paragraph. It is argued for 2. APPEAL AND ERROR (8 918*)_REVIEW

PRESUMPTIONS--AMENDMENT OF PLEADING. the executor that the point of division should

If necessary to support the lower court's be deemed to be at a comma after the phrase action in allowing the amendment of a declara"funeral expenses” in the second paragraph; tion, it may be presumed on appeal that the but the provisions of the first paragraph and court inquired dehors the pleadings and found

that the amendment declared on the same cause of the second are all inseparably bound to- of action as the original declaration. gether in a clear expression of a proposed

[Ed. Note. For other cases, see Appeal and contract natural and proper to be entered | Error, Cent. Dig. 3710; Dec. Dig. $918.*] into, and to dismember the second paragraph, 3. Pleading (

8248*)—AMENDMENT-DIFFERand treat the promise of money to pay the ENT CAUSES OF ACTION. mortgages otherwise than "in the same way" An amendment to a pleading setting up the that the promise to pay $10 a week is treat

same matter more fully or differently is allow. ed, is something which no rule of interpreta- ferent matter,

able, but not an amendment setting up a diftion permits us to do. By the contract Mrs.

[Ed. Note.-For_other cases, see Pleading, Everts exacted much, no one can say other- | Cent. Dig. $ 686; Dec. Dig. $ 248.*]


10. MASTER AND SERVANT (8 293*)-ACTION A declaration, in an action for the death of FOR DEATH OF SERVANT-INSTRUCTIONS-Goa railroad employé, which did not allege that de- ING BEYOND THE EVIDENCE. cedent did not know of the breaches of duty al- In an action against a railway company leged therein, was properly amended to supply for the death of an employé in a collision with a the omission; the amendment not declaring on runaway car, where there was no evidence that a different matter, but on the same matter more better means of stopping runaway cars were in fully and accurately laid.

use by other railroads, nor that any means oth[Ed. Note.-For other cases, see Pleading, been more effective, except that there was evi

er than those used by defendant would have Cent. Dig. 8 686–709; Dec. Dig. § 248.*]

dence that switch keys had been taken from sta5. MASTER AND SERVANT (8286*)—INJURIES tion agents along the line so that they were unTO SERVANT-QUESTION FOR JURY,

able to derail the car when notified by the disIn an action for the death of a railroad em- patcher, a charge, going beyond the matter of ployé, a motion for verdict on an amended count the switch keys, and allowing the jury to inof the declaration because there was no evi- quire generally whether any and what other dence of decedent's ignorance of breaches of du- means should have been provided, was erroneous ty alleged therein, one breach of which was not as not justified by the evidence. properly equipping a car, leaving the brakes in

[Ed. Note.-For other cases, see Master and a defective, negligent, and dangerous condition, Servant, Dec. Dig. $ 293.*] was properly overruled, where defendant practically conceded that decedent neither knew nor Exceptions from Rutland County Court; could be charged with knowing the condition of Wm. H. Taylor, Judge. the brakes, it appearing that the car was a foreign car received under such circumstances that

Death action by Silas H. Davis' adminisdecedent could have known nothing about it, tratrix against the Rutland Railroad Com. since plaintiff had a right to go to the jury on pany. Judgment for plaintiff, and defendant the claim of negligence in not properly equipping the car.

excepts. Reversed and remanded. [Ed. Note.-For other cases, see Master and Butler & Moloney, for plaintiff. M. C. Servant, Dec. Dig. § 286.*]

Webber and P. M. Meldon, for defendant. 6. MASTER AND SERVANT (8 206*)-ASSUMPTION OF RISK.

ROWELL, C. J. This is case for negliIn a death action, a motion for a directed gence in causing the death of the intestate verdict, on the ground of absence of testimony to show decedent's knowledge of defendant's al- by means of an escaped freight car collidleged breaches of duty, did not raise the ques- | ing with an engine that was being run by tion of decedent's assumption of the risk of one the intestate as defendant's servant, bauling of the breaches as a usual risk of the employ. ment, since such risks are assumed whether the

a passenger train from Rutland to Bellows servant knows of them or not.

Falls. [Ed. Note.-For other cases, see Master and

The original declaration, which contained Servant, Cent. Dig. $ 550; Dec. Dig. 8 206.*] but one count, did not allege that the in7. APPEAL AND ERROR (8 273*)_RESERVATION testate did not know of the different breach. or GROUNDS OF REVIEW - EXCEPTIONS

es of duty therein alleged, and the plaintiff SUFFICIENCY.

was allowed to file an amended count supWhere defendant submitted instructions plying that omission. It is objected that this covering practically the whole law of the case, an exception to the court's refusal to charge as

was error, for that the original declaration requested and to the charge as given on the showed no cause of action, and to amend subject-matter of the requests is too general and by showing one was to declare upon a new indefinite to be available on appeal.

cause of action, which is not allowable. But [Ed. Note.-For other cases, see Appeal and there was something to amend by, and if Error, Cent. Dig. 88 1620-1621; Dec. Dig. $the court was in doubt, on inspection of the 273.*)

original declaration and the amended count, 8. MASTER AND SERVANT (8 145*) - RULES

whether the latter declared upon the same CONSTRUCTION. A railroad company's rule that when cars

cause of action as the former or not, it could are placed on a siding the brakes must be set, inquire dehors them, to ascertain how the and if on a grade the wheels must also be block fact was; and, if necessary in order to ed, and derailing switches when in use must be support its action, we should presume it did set to ground, applies when cars are placed on a siding to be left, and not where a car was | inquire and found that it declared upon the shifted to a siding by one train for the purpose same cause. Lycoming Fire Ins. Co. v. Bill. of passing over it to be taken by a train then ings, 61 Vt. 310, 17 Atl. 715. And, besides, waiting for it.

the test is whether the proposed amendment [Ed. Note.-For other cases, see. Master and is a different matter, or the same matter Servant, Cent. Dig. $ 288; Dec. Dig. $ 145.*]

more fully or differently laid. If the latter, 9. APPEAL AND ERROR (8 1010*)-REVIEW, you can amend; if the former, you cannot. FINDINGS or Fact—CONCLUSIVENESS.

Daley v. Gates, 65 Vt. 591, 27 Atl. 193. Now Where the construction of a railroad company's rule was submitted to the court, the mat. here it is obvious on inspection that the ter of practical construction thereof by em- amended count does not declare on a differployés being pertinent to the question, its find- ent matter, but on the same matter more ing of such construction is conclusive, there be fully and accurately laid, and so no error. ing evidence to support it.

The defendant moved for a verdict on the (Ed. Note. For other cases, see Appeal and Error,, Cent. Dig. 88 3979–3982; Dec. Dig. & amended count, for that there was no evi1010.*]

dence tending to show that the intestate did

not know of the different breaches of duty , ing cars and to make its derailing devices therein assigned. The motion was over- efficient by proper rules and regulations had ruled. Six breaches were assigned, but only been fulfilled by promulgating said rule, and four submitted to the jury. These were: (1) that its construction was matter of law for Not properly equipping said car, in that the the court, and that the court should instruct brakes were defective, insufficient, and in a the jury thereon, which the court did, and innegligent and dangerous condition; (2) al- structed that the rule did not apply to the lowing the derailing device to be insufficient situation presented in the case, but was made and misplaced; (3) not establishing rules to apply when cars were placed on a sidand regulations for the government of em- ing to be left, and not for the purpose of ployés in operating said device and having passing over the track in shifting. The court it in proper condition; and (4) not providing said that it arrived at that construction from means for derailing cars that had escaped the language of the rule itself, but found it onto the main line, and for preventing them consistent with the conduct of the defendfrom doing damage. But the court could ant and its employés in operating under it, not grant the motion, for that would have and therefore further instructed that the tesdeprived the plaintiff of the opportunity of timony disclosed no rule that was applicable going to the jury on the claim that the de to the case. The defendant excepted to this fendant was negligent in not properly equip- part of the charge, and contends that it was ping the car, in that the brakes were de erroneous, for that the rule itself shows that fective, insufficient, and in a negligent and it did apply to the case, and for that the dangerous condition; whereas, the defend- testimony furnished proof of the understandant practically concedes that the intestate ing of employés as to the application of the neither knew, nor can be charged with know-rule, and that as matter of fact it was ing, the condition of the brakes in this re- understood to apply to just such a case as spect, for it says in its brief that the un- the shifting from the main line to a siding, contradicted testimony was that the intes- and that in view of this evidence it was error tate knew, or should have known, of all the to charge that the rule did not apply. But risks, "except the alleged defective brake.” we think the court was right, for the car, And this exception is justly made, for the with a brakeman on it, was shifted to the car was a foreign car, and came into the de- siding for the purpose of passing over it to fendant's yard at Rutland only eight days be taken north in a train then awaiting for before the accident, and was taken to East | it, and it would have to pass over the derail. Wallingford three days later, and placed ing switch in the lower end of the siding, and loaded on a spur track, where it re- or the train would have to back over that mained till the day of the accident, so that switch to reach the car, and to block the it is easy to say that the intestate knew wheels and set the derailer to' ground in nothing about the car nor the condition of these circumstances would have so hindered its brakes.

and delayed the business in hand that it seems The defendant invokes under this motion reasonable to say that the rule was not in. the doctrine that the servant assumes the tended to apply in such a case; and, if that usual and ordinary risks incident to his em- rule did not apply, the testimony disclosed ployment, and applies it to the failure of the none that did apply. And especially do we brake to work and hold the car because the think the court was right, for it found that chain suddenly kinked, as its testimony tend its construction of the rule was consisted to show, a thing that sometimes happens; ent with the conduct of the defendant and but the motion did not raise that question, its employés in operating under it, which for such risks are assumed whether the sery- amounts to finding that they gave it the ant knows of them or not; whereas, the same construction the court did, and, there only ground of the motion is absence of tes- being doubt as to the meaning of the rule, timony to show want of knowledge on the this practical construction is entitled to great part of the intestate.

weight. And although, as claimed by the The defendant submitted 10 requests to defendant, the testimony of one witness to charge, covering practically the whole law which it refers tended to show that the eniof the case, and excepted to the refusal of ployés understood that the rule applied to the court to charge as requested, and to cases like this, and that it was in fact so the charge as given on the subject-matter of applied, yet that is not controlling, for as the the requests. This exception is too general construction of the rule was submitted to the and indefinite to be available.

court, and the matter of practical construcThe defendant had a set of "standard tion was pertinent to the question, its findrules" governing the operation of its road ing of such construction is conclusive if there and instructing its employés, one of which was evidence to support it, and it appears was that, "when cars are placed on a sid- that there was, and it is not claimed that ing, the brakes must be set, and if on a grade, there was not. Cleveland v. Washington, 79 the wheels must also be blocked, and derail. Vt. 498, 65 Atl. 584. ing switches, where in use, must be set As to not providing means for derailing to ground." The defendant claimed that its cars that escape onto the main line, and for court charged: That it was the duty of the have been more effective, nor that it would defendant to exercise the care and prudence have been practicable to provide other means, of a prudent man to secure the reasonable and that the jury was allowed to speculate safety of its ways in that regard, and that as to whether any other and what means the jury would say whether it was negligent should have been provided, and permitted in not providing "other means" for arrest- to consider whether some means suggesting such a car than those that were avail-ed by counsel, or by their own ingenuity or able at the time of the accident; that the folly, would not have prevented the acthing complained of was that "other means” cident. The plaintiff's answer to this is: than those available were not provided; that That there was no submission of any specuit was said in argument that it was not the lative means, but only of the issue made by duty of the plaintiff to point out what other the evidence without objection; that the means should be used, but that it was the plaintiff had shown that the station agents duty of the defendant to foresee what might had been deprived of their switch keys; that happen, and provide means so that, in case a when the trouble came the dispatcher called runaway car escaped down over the grades upon them, helpless as they were, to derail above Rutland, there should be some means the car any way they could; that the court at hand to arrest its progress; and that that submitted only the fact of the switch keys was the question to be considered under that having been taken from the agents, and, if ground: "Would a prudent man have pro- that was not a proper issue for the jury, vided some means other than those that were the defendant should have refrained from available for that purpose?" The court told putting it in evidence to sustain its side of the jury: That it would not rehearse the it, and waived its right to make the claim testimony bearing on that particular phase of now insisted upon when it allowed the plainthe case, as they would have in mind what tiff's testimony to come in without objection. took place—the sending of the message from But the charge went beyond the matter of East Wallingford to the train dispatcher at the switch keys having been taken from the Rutland, bis wiring the station agent at Cut- station agents, and it would seem that the tingsville and at East Clarendon, the at- court so understood it, else it would have tempts made at those places to stop the car, confined the charge to that issue, and not the facts as to the switch keys not being left the jury at liberty to inquire generally in the hands of those agents, those things and at large, as it did, whether any and what and others disclosed by the evidence bear- other means should have been provided; and ing upon the question, which was not wheth- the charge went not only beyond that issue, er the station agents at those places were but beyond the testimony in the case, for, negligent, but whether the defendant was barring the matter of the switch keys, there negligent in not providing “other means” was, as the defendant claims, no testimony than those that were available for arresting that any better means were in use by other the progress of that car—that the defendant railroads, nor that any other means would said that that could be done only by having have been more effective, nor that it would some device in the form of a derailing have been practicable to provide other means. switch in the main line, which could not be This exception is sustained. tolerated, but that it was suggested that As the questions presented by the excep"other means” might have been provided, tion to the admission of certain testimony, and argued that the switch keys should have and the exception to the charge on the subbeen in the hands of the station agents, soject of damages, are such that they are not that they could use them readily for the pur- likely to arise again, they are not considered. pose of making a derailment; that those Reversed and remanded. were all matters to be considered as bearing upon the question whether what had

(81 Conn. 562) been done by way of preparation for a pos

BROWN V. CLARK et al. sible accident of this kind was what a prudent man would have done under the cir. (Supreme Court of Errors of Connecticut. Jan.

22, 1909.) cumstances; that, if it was, the defendant would not be liable on that ground; but if 1. JUDGMENT ($_306*)—CORRECTION-RECORD

SUBSEQUENT TERM. the jury was satisfied that the defendant was Courts possess the power to correct and negligent in not providing “other means" for amend their recorded judgments, so as to truly stopping or derailing the runaway car, and show what the judicial action in fact was; that that negligence was the proximate cause corded fails to agree with the rendered judg

clerical inistakes, by which the judgment as reof the injury, the defendant would be liable, ment, being subject to correction at a subseif the other elements of the plaintiff's case quent term, on proper notice. were made out.

[Ed. Note.-For other cases, see Judgment, The defendant contends that this was er- Cent. Dig. 8 598; Dec. Dig. 8' 306.*] ror, for that no evidence had been submitted 2. JUDGMENT ($ 314*)-RECORD-ERRORS-COR.

RECTION. that any better means were in use by other

Plaintiff, as administrator of a savings railroads, nor that any other means would l bank depositor, sued the depositor's widow and

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