Lowell v. Central Vermont Railroad

Headnote

Negligence — a plank next the rail taken out of a railroad crossing, to prevent snow and ice from gathering along the rail.

Where a railroad corporation, with a view to preventing the accumulation of ice and snow along its rails and the derailing of its cars, takes out, at a diagonal railroad crossing, a plank ten inches wide lying nearest to and inside of the rail, and the runner of a cutter slips into this space, glides along the projecting rail and is upset, a question is presented for the jury to determine whether in the presence of two duties one was negligently sacrificed by the railroad company for the sake of the other.

Appeal by the defendant, The Central Vermont Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 15th day of May, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 11th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.

The plaintiffs ought to recover damages for injuries sustained by himself and done to his horse and cutter, the latter being overturned upon a railroad crossing, which plaintiff charged defendant with negligently maintaining.

The plaintiff on the 14th of March, 1895, was riding in his cutter drawn by a single horse easterly along the highway in the town of Burke, Franklin county. The highway crossed the single track of

defendant’s railroad on grade and diagonally. The crossing, except, in the winter, was covered with planks lying lengthwise between the rails, filling the entire space between the rails, except a space of about an inch and a half inside of each rail, left for the purpose of allowing the flanges of the railroad wheels to pass through, with a plank on the outside of each rail, thus making a proper roadbed for the highway crossing. In the winter the defendant, in order to prevent the snow and ice from so filling and hardening in the inch and a half space between each rail and the plank next to it on the inside, and thus derailing passing cars, took up the plank next to each rail on the inside, and had done so in the winter of 1895 before this injury occurred. The runner of plaintiff’s cutter upon the day named, as plaintiff was driving over the crossing at a speed of about five miles an hour, came in contact with the easterly rail and slid along it for a little distance and then the cutter upset and plaintiff and his horse and cutter were injured. Evidence Avas given by the defendant to the effect that the removal of the planks next, inside of the rails was a proper precaution and had been suggested by experience upon its own and upon the Malone division of the New York Central railroad, both of these companies resorting to this practice.

The defendant moved for a nonsuit upon the whole evidence, which was denied, and defendant excepted. The jury rendered a verdict for the plaintiff for fifty-five dollars.