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let, and one ground of defense was that it rail which had a bent or broken switch point was not responsible for the act of the plain- and placed it on a car. tiff's fellow servant. The plaintiff claimed Dennis Gleeson, a car repairer, was with that the negligence was the defendant's, and Aldrich, and testified, as he did, that he saw he introduced evidence from which he con- men take a bent switch rail from one of the tended that, if the switch was set for the ash two switches, but he could not say which pit track, yet, if the points to the switch one. rails were bent or broken, the engine might The defendant's evidence tended to show have gone upon track No. 1, though the that the switch rail at this switch was not switch was closed to that track. The de- bent nor out of repair. fendant claimed that there was no evidence The defendant excepted to the introduction sufficiently definite to tend in any manner of all the evidence relating to a broken to prove that a bent or broken switch point switch rail, and, after its admission, moved existed at the time of the accident, and cer- to have it struck from the record, which tainly none to identify it as the one in track motion was denied and the defendant exceptNo. 2.

ed. It also excepted to the submission by 1. The exceptions state that there was no the court to the jury of the question whethevidence tending to show that the switch er, upon the evidence, the plaintiff had made point was bent or broken, unless the testi- out his claim that there was a bent switch mony of certain witnesses tended to show it, point in the switch in controversy. The dewhich must be considered.

fendant's contention is that the evidence did Martin Gleeson, a competent expert wit- not point to the switch in question, and that ness, testified that, in his opinion, if the the jury were obliged to "guess" which switch was set for the ash pit track, and the switch it was that the workmen were repairpoint of the switch was bent or broken, the ing. engine would be as likely to go in on the This evidence was introduced by the plainboiler house track as on the ash pit track; tiff as a part of his opening case as tending that, if several cars were passing along, to establish the essential fact of the defendsome would be likely to take one track and ant's negligence. It was, in brief, that the some the other.

engine went wrong, the plaintiff claiming for Perry, the defendant's yard foreman, testi- one cause, the defendant another. The plainfied that he placed four or five coal cars on tiff's evidence tended to show that, if a track No. 1 the forenoon of the accident; switch rail point was bent or broken, that that there was one car on that track before; might have been the cause, although the that the track would hold only five or six switch was set for the ash pit track. A bent cars; that about 8 o'clock that morning, or broken switch rail was taken from one after setting the cars on there, he turned the of the two switches a day or two after the switch for the ash pit track for which it was accident, but the witnesses could not say most commonly set, though the other track which one. No accident had occurred at was sometimes used two or three times a switch No. 3. In these circumstances the day for storing coal cars; that the ash pit evidence was admissible. The defendant's track was used 10 or 12 times a day, and claim about the collision may have been engines went to the ash pit to be cleared of more probable than the plaintiff's, but the ashes; that he had no knowledge of the plaintiff's evidence tended to show that it switch being changed that morning before happened by reason of an imperfect rail. the accident; that sectionmen were at work Therefore it became a question for the jury around there, but no one had authority to to decide. change it.

2. It is the general rule that evidence of Boulet testified, in substance, as before repairs made after an accident has occurred stated.

is incompetent to show antecedent negligence Moore, a fireman, testified that he was on on the part of a railroad company. Terre the engine with Boulet at the time of the Haute, etc., R. Co. v. Clem, 123 Ind. 15, 23 accident; that he turned the switch for the N. E. 965, 7 L. R. A. 588, 18 Am. St. Rep. ash pit track after the accident, and that 303; Shinners v. Proprietors of Locks & the engine then passed over it; that the Canals, 154 Mass. 168, 28 N. E. 10, 12 L. R. switch rails and points were in good condi- A. 554, 26 Am. St. Rep. 226; Dale v. Lack. tion, not bent nor broken; that sectionmen & W. R. Co., 73 N. Y. 468; Columbia & P. were working around there that forenoon on S. R. Co. v. Hawthorne, 144 U. S. 202, 12 the switches, but he could not say what Sup. Ct. 591, 36 L. Ed. 405. But this rule ones; that he saw no one turn the switch, does not apply to the present case. Here an and saw no one go on that track after Perry accident had happened, and the question placed the coal cars on track No. 1.

Which of the two causes which the Aldrich, a brakeman, testified that he and evidence tended to show existed was the a fellow workman were passing along tracks more likely to have produced it? However, Nos. 1 and 2 a day or two after the acci- clear it may have seemed to counsel or eren dent, and saw sectionmen at work upon one to the court that it was caused by a misplacof the ash pit switches, but he could not say ed switch, there was evidence tending to of the court to submit the question to the plaintiff went, by direction of the defendant's jury.

was:

foreman, White, from the coal chute, a dis3. The plaintiff could not recover if the tance of 75 to 100 feet, to the boiler house, accident happened through the negligence of to assist in unloading a coal car that stood his fellow servant Boulet, unless he was in- on track No. 1, called the boiler house track. competent, and tủe defendant knew or ought To reach that building, he went north, crossto have known of his incompetency. The ing tracks Nos. 5, 4, 3, 2, and 1. The car to plaintiff claimed that Boulet was deaf, and be unloaded stood near the building-some that his deafness would be likely to prevent witnesses said from 12 to 18 inches, others his hearing the clicking sound caused by the from 18 to 26 inches. The east end of the engine in going over a switch. Boulet testi- building and the east end of the car were fied that he did not hear the click when the about on a line. A string of four or five engine went over the switch, and that the loaded coal cars was standing on track No. first thing that apprised him that he was on 1; the one at the west end then being three the wrong track was the click of the wheel or four feet from the car that was to be later as it passed over the frog; that he unloaded. It appeared that this space had then looked up, and saw where he was going. generally been kept open, sometimes 15 feet If he had heard the switch click, he might wide, so that the defendant's workmen could have been forewarned and stopped his engine pass through as they had occasion to go to in time to avoid the collision. The defend the boiler house. It was also used by them ant's evidence was that Boulet had been in in wheeling cinders from the boiler house. its employ several years; that his deafness On this occasion the plaintiff and a fellow did not disqualify him for the performance workman, Boin, passed through this space of his duty, and that he was a competent between the cars, entered the building by a hostler. Whether upon all the evidence he door at its east end, which was the usual was competent, and whether, if incompetent, place of entrance, opened the windows the defendant knew it or ought to have through which the coal was to be shoveled, known it, were questions of fact for the jury and then went out and climbed upon the to decide.

car at its east end. The plaintiff unloaded 4. It was clearly competent for the plain- the west end and Boin the east end. When tiff to prove that there was no lock upon it was unloaded, Boin got down over the this switch, that until within a year it had east end, and went into the boiler house. been kept locked, and that locks were com- The plaintiff took his pick and shovel and monly used by the defendant upon similar walked in the car to its east end to go down switches in that yard. Upon the defendant's where he went up. He set his tools down theory of the cause of the accident, the jury inside the car, climbed up to the platform might have inferred that a lock would have or shelf, reached back and got his tools, and prevented a misplacement of the switch. It threw them over upon the ground, and bewas held in Carrow v. Barre R. Co., 74 Vt. gan to descend towards the space between 176, 52 Atl. 537, which was an action for the cars. The plaintiff described the accident injuries received at a grade crossing, that as follows: “* When I was climbing evidence that there was no flagman at the down, I put my foot on the draw iron to crossing was admissible as a part of the reach down to get onto the brake beam with surrounding circumstances, although the de- the other foot to step down, and, just as I fendant was not bound to keep a flagman had got my foot placed, the engine came there. See Smith v. C. V. R. Co., 80 Vt. 208, along and collided with three or four cars 67 Atl. 535.

that were in front and shoved them up onto 5. When the plaintiff received the injury the one that I was getting off from." Furcomplained of he had been in the defendant's ther on he testified:, “When I got over onto employment seven days shoveling coal, most the platform, the shelf, I turned then to step of the time at the coal chute, loading ten- down. * Had my right hand on the ders with coal. He had worked for the de- brake rod and the other hold of the handle fendant in the railroad yard, shoveling snow, at the end of the car.

One foot was 1042 days at one time and 3 or 4 days at placed on the draw iron, and the other one another time, the last time about a week I don't know exactly where it was.” He before he began shoveling coal, and the other testified that he was attempting to put it about a week before that. When he shovel- onto the brake beam, which he said was a ed snow, he worked upon all the tracks in the foot and a half below the platform and went Island Pond yard, and helped clear out the in under it eight or ten inches—under the switches. This seems to have been all of his end of the car. In answer to questions he experience in working about railroads, en- testified that the brake rod was pretty near gines, and freight cars. He had been a farm- the center of the end of the car, er except three years, when he had worked right on the side of the draw iron”; that in a print mill. He was 57 years old, 5 feet what he took hold of was the handle fasten4 inches in height, and for anything that ap- ed on the end of the car, sometimes called peared a man of ordinary intelligence. the grab iron; that this handle "was on the

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that the grab iron was placed horizontally was the duty of the court to consider the on the car; that he placed his right foot evidence in the light most favorable to the on the drawbar, and was attempting to plaintiff. If there was evidence tending to place the other on the brake beam so as to show that he was in the exercise of the care step down; that he did not know that there and prudence of a prudent man under like was a spring in the drawbar that allowed circumstances, the motion could not be grant'it to shut in or pull out. He further tes- ed. Boyden, Adm'r, v. Fitchburg Ry. Co., 72 tified that he had no notice or knowledge Vt. 89, 47 Atl. 409, and cases cited in the that cars were likely to shunt on that track. opinion. This has long been the settled rule On cross-examination the plaintiff testified of law. The plaintiff's experience in workthat he knew that track No. 1 was used for ing upon and about engines and freight cars; the storage of coal cars; that he saw this the fact that the passage was generally kept string of cars on the track when he went to open and that the plaintiff was attempting work that morning; that no others were to reach it when he was descending from the placed there while he was there at work; car; that this was the most direct and the that in climbing upon the car from the pas usual way to reach the building which his sageway he put his foot upon the brake duty required him to enter to close the beam and his knee up on the shelf, and did windows; that the string of coal cars bad not use the drawhead. Upon being recalled, stood there two hours or more, with no en. the plaintiff testified that he had no knowl-gine attached and with no warning or sign edge that the point of the split switch was that they were about to move; the time it bent or broken, and that he had no knowl- would take him to descend—were all matters edge that it had no lock upon it; that, if for the consideration of the jury. If the any cars had been placed upon the track coal was piled so high upon some of the while he was upon the car he should have coal cars that he could not have seen the known it by the noise, and that a switch- approaching engine as he turned his face man would have been there motioning; that to the west to facilitate the act of getting the coal upon some of the cars was piled down, it could not be held as matter of up higher than the body of the car so as law that that act was negligent. Whether to obstruct his view in that direction; also, he could have seen it was a controverted that in getting down from the car he looked question. If he had seen or could have seen for a stirrup and found none.

it when it was east of the switch, it was The defendant's evidence tended to show for the jury to say whether he should have that there were stirrups and handles on all watched it and discovered which track it four corners of the car and in perfect condi- took at the switch; no warning or signal tion. Except as a convenience to himself being given to him. Engines were constantin sooner reaching the passage, there was ly going to the ash pit to be cleaned. They no apparent reason why the plaintiff should went less frequently into track No. 1. If he not have got down at the southwest cor- could have seen the switch, the evidence does ner of the car and walked along the south not make it clear that he could have told side of it to the passage. It is not clear which track the engine had taken. The cir. that he could have got down on the north cumstances attending the accidental passing side and reached the door by going between of the engine onto the boiler house track the car and the building, as the space was

were somewhat different from what they narrow. The plaintiff admitted on cross

were when an engine was sent there to reexamination that he had observed the move

move a coal car. ment of cars and engines upon the tracks

The rule was correctly stated in Place v. in the vicinity, the method of coupling cars Grand Trunk R. Co., 80 Vt. 196, 67 Atl. 545: and engines, and the liability of freight cars to be knocked along the track when struck to be drawn from the evidence bearing upon

If there are opposing inferences by an engine, and knew that the drawheads were liable to come together with a strong that question must be submitted to the jury.”

the question of contributory negligence, * impact. The morning of the accident was

It cannot be bright and clear. The plaintiff's car stood See cases cited in the opinion. at the west end of the track, so that danger held as a matter of law that, in the circumcould only come from the other direction, stances of the case, the plaintiff had or was yet for convenience in descending he turned chargeable with such knowledge of danger his back to the east. He denied seeing the that he was guilty of contributory negligence engine upon that track, and his evidence in attempting to descend from the car. It tended to show that coal was loaded so high was for the jury to say whether he reasonupon some of the cars that were standing ably ought to have known of the danger atthere that he could not have seen an engine tending the act. Our cases upon this point coming down the boiler house track.

are so numerous, and several are so recent, At the close of all the evidence, the de- that it is not necessary to restate them. The fendant moved for the direction of a verdict leading ones were cited in the opinion in this upon the ground of the plaintiff's contribu-case when it was here before. This case is Vt. 336, 22. Atl. 656, where the plaintiff was 1 an experienced car inspector, and knew, when

WILLIAMS v. SMITH. he went under the car to repair it, the danger

(Supreme Court of Rhode Island. Feb. 12, of cars being shunted against his car. No

1909.) one connected with defendant company knew of that danger better than he did. The case

EXCEPTIONS, BILL OF (8 48*)-NOTICE OF FIL

ING AND HEARING. is also unlike the Magoon Case. The motion

Where plaintiff's attorney, on learning that to direct a verdict was properly denied. the bill of exceptions and transcript of evidence

6. The defendant contends that there was had been filed, and prior to the allowance of the error in the charge in omitting full instruc- exceptions, sent the judge who presided at the

trial a letter containing every objection to the tions upon the subject of contributory neg. allowance of the bill of exceptions that he now ligence. The court carefully pointed out to relies on, the judge, who considered and acted the jury the three claims made by the plain. on such matters, was justified in believing that

plaintiff desired no further or other hearing on tiff of the defendant's negligence the want the allowance of the exceptions, so that there is of a lock upon the switch, a switch rail out no merit in her motion to dismiss the bill of exof repair, and the hostler's incompetency-ceptions for want of notice of the filing therethat, to entitle the plaintiff to recover, they of, or for lack of notice of the hearing thereof,

under superior court rule No. 31. must find one or more of these claims sus

(Ed. Note.-For other cases, see Exceptions, tained; that the negligence found was the Bill of, Dec. Dig. § 48.*] proximate cause of the accident; that the plaintiff was not guilty of contributory neg. Exceptions from Superior Court, Proviligence; and that he did not know of the dence and Bristol Counties; Darius Baker, danger. In the discussion of each of these Judge. claims of negligence, the instruction was that, Action by Hope T. Williams against Clarif the jury found tbem or either of them ence A. Smith. Plaintiff moves to dismiss made out, the plaintiff was entitled to re- defendant's bill of exceptions. Denied. cover unless he knew of the danger, omitting See, also, 68 Atl. 306. the usual instruction, “or he ought to have

James Harris and Irving Champlin, for known and comprehended it.” It was manifestly an important question of fact for the plaintiff. Marquis D. L. Mowry and Louis

L. Angell, for defendant. jury to decide whether or not the plaintiff was guilty of contributory negligence in de scending from the car in the manner testified

PER CURIAM. There is no merit in the to by him, yet the court gave the jury no plaintiff's motion to dismiss the defendant's specific instruction upon this branch of the bill of exceptions for want of notice of the

The charge must be held inadequate, filing thereof, or for lack of notice of the in that the attention of the jury was not hearing thereon, under the provisions of rule called to the situation in which the plaintifr No. 31 of the superior court. The evidence placed himself and to the degree of care and discloses the fact that the plaintiff's atprudence that he was bound to exercise in torney, after ascertaining that the bill of exview of the danger. He was chargeable with ceptions and transcript of evidence had been knowledge of the danger that in the exer- filed, and prior to the time of the allowance cisė of the care of a prudent man he might of the exceptions, sent a letter to the judge have obtained as well as with the knowledge taining every objection to the allowance of

who presided at the trial of the case, conthat he actually possessed, and the jury the bill of exceptions that he now relies upshould have been so instructed to enable them to determine whether or not the plain- Llish the truth of said exceptions.

on and has set out in his petition to estab

It also tiff was guilty of contributory negligence. Without such instruction, they might well appears that the judge considered and acted have understood that the plaintiff was charge of the opinion that the judge was justified

upon the same. In the circumstances we are able only with knowledge of the danger that in believing that the plaintiff did not desire he saw, and not with knowledge of the danger that he might have seen by the exercise any further or other hearing on the allow

ance of the exceptions. of the requisite degree of care.

Therefore the motion to dismiss must be 7. The sixth request to charge was: “That

denied. the duty to look about for moving engines and cars before putting himself between two cars in a railroad yard in such a way that

(222 Pa. 395) he would be crushed if the cars came togeth

LYTTLE V. DENNY. er is the duty of any ordinarily prudent man, and a failure to so look is negligence as a (Supreme Court of Pennsylvania. Jan. 4, 1909.) matter of law.” This was in effect a motion 1. INNKEEPERS (8 10*)—INJURY TO GUEST for a verdict, and has already been consid

NEGLIGENCE. ered.

Where the top of a folding bed in a hotel

falls down upon a guest lying upon the bed, the Judgment reversed, and cause remanded.) burden of proof is on the innkeeper to show that

case.

the accident happened from no want of care on | owing to its defective condition; by the el. his part.

evator falling with him, after having beer [Ed. Note.-For other cases, see Innkeepers, negligently inspected, although the innkeeper Dec. Dig. $ 10.*]

himself had employed a proper inspector, and 2. INNKEEPERS (8 10*) — INJURY TO GUEST was not personally negligent; by the breakNEGLIGENCE.

Where a guest in a hotel is injured by the ing of a defective railing, by reason of which falling of the top of a folding bed, it is evidence, the guest fell into an area; and by the guest in the absence of explanation by the innkeeper, falling off an unguarded stairway.” The authat the injury was caused by his negligence.

thorities are in substantial agreement that [Ed. Note.-For other cases, see Innkeepers, while the duty of an innkeeper requires him Dec. Dig. $ 10.*]

to take reasonable care of the persons of his 3. DEPOSITIONS (8 88*)- EXCLUSION.

guests, he is not to be regarded as an insurer Depositions are proper't excluded, where, of their safety. His liability has sometimes though the rules of court provide for taking depositions of ancient, infirm, and going wit- been declared to be similar to that of a comnesses, it is not shown'that the witnesses whose mon carrier, but the better opinion seems to depositions were taken were within such classes, be that the degree of care required of an innor that their presence in court might not be ob- keeper is not so great as that which is imtained. [Ed. Note.-For other cases, see Depositions, hire. În discussing this question in Clancy

posed upon those who carry passengers for Dec. Dig. g 88.*]

v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69 Appeal from Court of Common Pleas, Cam- L. R. A. 653, Judge Sapborn says: "While bria County.

there are many loose statements in the books Action by A. C. Lyttle against J. B. Denny. to the effect that the liability of common carFrom an order refusing to take off a nonsuit, riers to their passengers and the liability of plaintiff appeals. Reversed.

innkeepers to their guests are similar, and Argued before MITCHELL C. J., and while that proposition may be conceded, it is FELL, BROWN, MESTREZAT, POTTER, certain that the limits of these liabilities are ELKIN, and STEWART, JJ.

by no means the same. A railroad company Thomas H.'Greevy, J. C. Davies, and E. G. ercise the utmost care in the preparation of

is liable to its passengers for a failure to exBrotherlin, for appellant. M. D. Kittell and its road and the operation of its engines and H. H. Myers, for appellee.

trains upon it, because the swift movement

of its passenger trains is always fraught POTTER, J. From the history of this case with extraordinary danger, which it requires it appears that in May, 1903, the plaintiff extraordinary care to avert. But an innwas a guest at the hotel of the defendant in keeper's liability for the condition and operaJohnstown, Pa. In the room which was as- tion of his hotel is limited to the failure to signed to him there was an old-style folding exercise ordinary care, because his is an orbed, with a wardrobe in the back, and so ar- dinary occupation, fraught with no extraor. ranged that the bed portion would fold up so dinary danger." It may be assumed, then as to leave the bed in an upright position that the duty imposed by law upon an innwhen not in use. The top of the bed was keeper requires him to furnish safe premises heavy, weighing about 300 pounds. The to his guests, and to provide necessary artiplaintiff occupied the bed during the night, cles of furniture, which may be used by them and early the next morning, as he was about in the ordinary and reasonable way without to rise, the top or upright portion of the bed | danger. Did the defendant, then, in this fell forward upon him, crushing his head case, use such reasonable care in the disdown upon his breast and inflicting severe charge of this duty to the plaintiff who was injury. To recover damages for the injury his guest? The testimony introduced showed thus caused the plaintiff brough this suit the fact and manner of the accident, but against the proprietor of the hotel. Upon stopped short of pointing out the exact defect the trial at the conclusion of plaintiff's testi- in the bed which ca used it to fall down upon mony, the court entered judgment of com- and entrap the plaintiff. The trial judge pulsory nonsuit, and from the refusal to thought it was incumbent upon the plaintiff strike it off the plaintiff has appealed. to show in detail just what was wrong with

The main question raised is as to the lla- the bed, and the reason for its falling; and, bility of an innkeeper to his guests. We find because this did not appear from the testithe general rule of law in this respect is thus mony offered by the plaintiff, judgment of stated in Beale on Innkeepers and Hotels, 88 nonsuit was entered. We do not agree with 162, 163: “The innkeeper is bound to provide his view in this respect. Bearing in mind reasonably safe premises.

Both in the duty of the innkeeper to guard with reaoriginal safety of construction and in main- sonable care the safety of his guests, proof tenance the premises must be such as reason of the happening of such an extraordinary ably to secure the safety of the guest. So accident casts the burden of explanation at the innkeeper has been held liable for injury once upon the defendant. The accident was to the guest by the ceiling falling upon him, I so far out of the usual course that no fair

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