(116 A.)

9, 1922.)

(95 Vt. 523)

I. Exceptions, bill of 23-Skeleton bill of exceptions held not sufficiently to refer to transcript to authorize review of motion for directed verdict.

either with his fist or with a club, struck [ Hayes down; that they then robbed him of DENT v. BELLOWS FALLS & S. R. ST. RY. what money they found on his person, and CO. (No. 347.) put his body by the side of some bushes on the bank of the river, one of the participants (Supreme Court of Vermont. Windham. Feb. in the crime to put it into the water later. After making this statement several times, the respondent changed his story by stating that the three accomplices were strangers to him, not the men at all whose names he had previously given. In other respects the two Where transcript was not in terms made statements did not materially differ. The the bill of exceptions, but the transcript of the second story he told several times, and on testimony and charge of the court was referred different occasions. Still later he stated that to in a skeleton bill of exceptions and made he himself killed Hayes. While in the trial part of the bill without mention of a motion of the case, taking the stand and testifying script was so restricted that the ruling of the for directed verdict, the reference to the tranin his own behalf, he said his previous state-court in denying the motion for a directed verments, shown in evidence, to the effect that diet could not be reviewed.

he had to do with the commission of the

crime, were all lies; that he was not in any 2. Exceptions, bill of 26-Uncertainties in bill resolved against excepting party. way implicated in the crime and knew nothing about it. Uncertainties in a bill of exceptions must

[4] The testimony of the doctors, showing be resolved against the excepting party. the bruised and swelled condition of the tem-3. poral muscle on both sides of the head of the deceased, when the body was examined immediately after it was taken out of the water, and at the time of the autopsy, and that in their judgment such condition was produced before the body was submerged in the water, and that the condition found in this respect was such as might have been produced by a blow or blows, and that the body entered the water while life was present, was corroborative of the statements of the respondent to the effect that the death of the deceased was produced through criminal agency. The evidence showing such statements was therefore properly received. State v. Blay, 77 Vt. 56, 58 Atl. 794; 13 R. C. L. 739, par. 43.

Appeal and error 274(1)-Matter of contributory negligence held before reviewing court under exception to overruling of motion to set aside verdict.

Though exception to overruling of a motion for a directed verdict was not reviewable under a restricted reference in skeleton bill exceptions to the transcript, the question of concould be considered where an exception taken tributory negligence, on which it was based, to overruling of motion to set aside the verdict on ground of contributory negligence was properly on the record.

Exception 9. In disposing of this exception, nothing more need be said than that the statements in evidence, as made by the respondent, showed that the motive for the murder of Hayes was robbery from his per

son.

[5] Exception 10. The sole ground of the motion in arrest of judgment was that there was no evidence in the case to sustain a verdict of murder in the second degree, since on the evidence a conviction could be had only for murder in the first degree. There was no error in overruling this motion. The question of the lack of evidence to sustain a verdict cannot be raised in this way; for the evidence, though referred to, is not part of the record to which we are confined in reviewing the ruling on such a motion. Dyer v. Lalor, 94 Vt. 103, 109 Atl. 30; State v. Shappy, 79 Vt. 306, 65 Atl. 78; Montpelier & Wells River R. R. v. Macchi, 74 Vt. 403, 52 Atl. 960.

Judgment that there was no error in the proceedings below, and that the respondent take nothing by his exceptions.

4. Negligence 83-"Last clear chance" doctrine defined.

The "last clear chance" doctrine presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence had taken place when the defendant could, and the plaintiff could not, by use of means available, avert the accident, in the situation was remote, and that of the dewhich case the negligence of the party creating fendant in not averting the accident after the peril was or should have been discovered became the sole proximate cause of the injury.

[Ed. Note.-For other definitions, see Words und Phrases, First and Second Series, Last clear chance.] 5. Railroads

370-Care required as to pe

destrians using bridge.

Where a railroad knows that its bridge is used by pedestrians, the duty rests upon it to keep a lookout for them, and to operate its cars with a reasonable degree of care commensurate with the known danger, even though they are trespassers.

6. Railroads 400 (14)-Negligence under last clear chance doctrine held for jury.

In an action for death of a pedestrian, killed at night by being run over by an electric car on a bridge commonly used by trespassers, whether negligence of the defendant in not maintaining a proper headlight at the mo

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

.

As the court does not search for ground on 8. Appeal and error 1050 (4) Defendant sufficiently presented to require attention, unwhich to reverse a judgment, points are not held not prejudiced by introduction of photo-less counsel undertakes in the brief to aid in graphs.

9. Railroads 397 (5) Evidence of use of ment for the plaintiff, and defendant brings bridge by pedestrians held admissible.

(116 A.)

briefed, and so is waived. Both motions raised the same question, so far as they related to negligence on the part of the intestate. It cannot be said that this exception or that is waived by failure to brief, as the discussion applies as well to the one as to the other. However, in view of the possible effect upon the final disposition of the case here, it will be necessary to decide whether the question of error in denying the motion for a directed verdict is saved to the defendant.

of way, a short distance westerly toward Saxtons River from Barber Park. This park is an amusement resort, which the defendant had operated for several years, and to which the public was invited. It was situated on the line of defendant's railroad, and was also accessible by a public highway. On the night of the accident a dance was being held at the park. The intestate had carried a party from Springfield to the park in his automobile, going by the highway, and had returned to Bellows Falls for another party destined for the dance. Instead of driving by the highway to the park on the return trip from Bellows Falls, he parked his automobile in the yard of a house some distance westerly of the bridge, and with those who accompanied him set out for the park on foot, leaving the highway and following the railroad track toward the bridge. It was then about half past 9, and the night was dark and cloudy, so much so that it was difficult walking the track, especially after the bridge was reached. The bridge was 165 feet long, constructed of iron, with the usual timber and cross-ties of such a railroad bridge. For some years previously boards or planking had been maintained between the rails across the bridge, put there as defendant's evidence tended to show for the convenience of its employees in crossing. These boards were originally nailed to the ties, but at the time of the accident they had become disarranged and broken on the easterly half of the bridge. The party proceeded along the track in couples a short distance apart. The intestate and a Mrs. Cook, whom he was assisting, were the last to go upon the bridge. The latter had on high-heeled shoes, which increased her difficulty in crossing. Just as the rest of the party reached the east end of the bridge, and when Mrs. Cook

[1-3] The case was passed to this court on a skeleton bill of exceptions, which specifies generally certain exceptions to the admission and exclusion of evidence and to the charge of the court and its refusal to charge, "as by the transcript fully appears." The transcript is not in terms made the bill of exceptions; but the transcript of the testimony and charge of the court is referred to and made part of the bill, and it is ordered that it be controlling. No mention of the motion for a directed verdict is made in the bill of exceptions, and the question is whether the reference to the transcript is so restricted that it cannot be treated as made a part of the bill beyond what is therein specified. While under the present practice exceptions may be brought onto the record by proper reference to the transcript, when reference thereto is made for a limited purpose, only the exceptions set forth in the bill are for consideration. Johnson & Co. v. C. V. Ry. Co., 84 Vt. 486, 500, 79 Atl. 1095; Roach v. Caldbeck, 64 Vt. 593, 24 Atl. 989; Fraser v. Nerney, 89 Vt. 257, 261, 95 Atl. 501; Lynch's Adm'r v. C. V. Ry. Co., 89 Vt. 363, 380, 95 Atl. 683. Where there is a general controlling reference to the transcript not intended as a reference for exceptions not noted in the bill, an exception appearing in the transcript and not in the bill is not for consideration. and the intestate were about three-fourths Bianchi Granite Co. v. Terre Haute Mon. Co., 91 Vt. 177, 99 Atl. 875. See, also, Cutler Co. v. Barber, 93 Vt. 468, 472, 108 Atl. 400, where other cases are cited. As uncertainty in a bill of exceptions must be solved against the excepting party (State v. Marino, 91 Vt. 237, 99 Atl. 882; Reynolds v. Bean, 91 Vt. 247, 99 Atl. 1013, it should be held that the exception to the overruling of defendant's motion for a directed verdict is not on the record. But it does not follow that the question of contributory negligence is not for consideration. The exception taken when the motion to set aside the verdict was overruled, which is on the record before us, saves the question. German v. Bennington & Rutland R. Co., 71 Vt. 70, 42 Atl. 972.

The evidence, in the view most favorable to the plaintiff so far as it was conflicting, tended to show the following facts: Plaintiff's intestate was 41 years of age, in good health, and his sight and hearing were normal. The bridge where the accident occurred was on the defendant's private right

of the way across, the car in question was discovered by those at the end of the bridge as it came in sight around a curve about 835 feet away. They immediately made an outcry, intended to warn those on the bridge and to attract the attention of the motorman. The intestate and Mrs. Cook redoubled their efforts to get off the bridge, but the car came on at a rapid rate of speed, which was increased as it approached, and struck them while still on the bridge at a point about 8 feet from the easterly end. Mrs. Cook was thrown clear off the track, but the intestate went under the car and was instantly killed.

The car in question was of the ordinary open type, with running boards on either side. It was 45 feet long over all, and was lighted by two rows of 16 C. P. electric lights on the inside of the roof. It had no headlight, though it was equipped so that such a light could have been installed. On the run in question it was scheduled to leave Saxtons River, two miles westerly of Barber Park, at 9:30, arriving at the park at 9:40,

and was running on scheduled time. As lighted, the motorman could see ahead in the dark only a short distance-some 10 or 15 feet. The motorman was watching the track ahead as the car crossed the bridge, but did not discover the persons on the track until about three-fourths the way across. On discovering them he did everything possible to stop the car. He applied the brakes and reversed the power, which brought the car to a stand about 74 feet from the point where the intestate was struck.

While

tral Vermont Ry. Co., 113 Atl. 524. actual discovery of the peril is a prerequisite to the application of the doctrine as applied in some jurisdictions, this court has held, as shown in the cases cited, that a party is called upon to take action for the safety of one who has negligently placed himself in a position of danger when the latter's peril is discovered and comprehended, or with the exercise of reasonable care would have been discovered and comprehended. The extension of the doctrine to perils not actually disThe defendant insists that the intestate covered is fully justified when the situation was a trespasser, and bases its arguments is such that the defendant owes the duty of on the question of its duty to him upon that looking out for danger, as in the case of assumption. The plaintiff does not serious- persons crossing a railroad at a highway ly contend that such was not the fact, but crossing at grade. Our cases in which the claims that certain evidence respecting the rule has been formulated are all of this charuse of the track and bridge at that point acter. It should not be understood as applytakes the case out of the rule relied upon by ing in the absence of a duty to maintain a the defendant respecting the duty of a rail- lookout, as in case of persons on a railroad road company to trespassers on its track. track where there is no reason to anticipate The evidence referred to tended to show that their presence. This is the necessary infervisitors frequently crossed the bridge in go-ence from the very statement of the rule. ing to or from the park, and that the officials and employees of the company knew, or ought to have known, of this practice. The view we take of this evidence, which we shall have occasion to refer to more in detail later, renders it unnecessary to decide whether the intestate had any more favorable standing than that of a trespasser, and we assume, without deciding, that his position was that of a trespasser. The defendant claims that the intestate was, in the circumstances, guilty of contributory negligence as a matter of law in being upon the bridge, while the plaintiff contends that the question of contribu-ed by the evidence relating to the use made tory negligence was for the jury. However, as we shall see, the ultimate and controlling question is such that it may be assumed that the intestate was negligent in undertaking to cross the bridge. With this assumption the case is narrowed down to the question whether on the evidence the intestate's negligence must be deemed to have been the proximate cause of his death, or, in other words, whether the doctrine of the "last clear chance" applies.

[4] The rule applicable in such a case has so recently been considered and announced by this court that any extended discussion of the general proposition is unnecessary. The doctrine presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence has taken place when the defendant could, and the plaintiff could not, by the use of the means available, avert the accident. In such a case, the negligence of the party creating the situation is remote, and that of the defendant in not averting the accident, after the peril is or should have been discovered, becomes the sole proximate cause of the injury. La Mountain's Adm'x v. Rutland R.

[5] The defendant is charged with negligence in operating the car at an excessive rate of speed and without a suitable headlight. It is necessary to determine at the outset what, if any, duty the defendant owed the intestate in these respects. The defendant admits that it would be liable for failure to use ordinary care in avoiding injury to the intestate after discovering him in an exposed position, but claims that it was under no further obligation; he being a trespasser. The argument overlooks the fact that defendant's duty at the place in question is affect

of the bridge such as the intestate and his associates were making. There was evidence tending to show that for several years during the summer when the park was in operation people were accustomed to cross the bridge almost daily in going to or from the park. People coming from the direction of Saxtons River frequently left their teams or automobiles at some point west of the bridge, and walked the track in preference to following the highway. This travel was sufficient to make a well-defined path from the highway across intervening land to the railroad. Defendant's superintendent was present on one occasion at least when people were crossing the bridge. The intestate himself had made a similar use of the bridge two or three time several years before. One witness, formerly employed by the defendant as motorman, testified that on two occasions he had encountered such travelers on the bridge, and been obliged to stop to let them get off. On the evidence it would be a question for the jury whether the officials of the company knew, or ought to have known, of the use being made of the track and bridge by travelers, and whether they should have anticipated that such use would continue. With

(116 A.)

the defendant to look out for trespassers | the claimed negligence of the defendant was even at that place, and to operate its cars an active element after the negligence of the there with a reasonable degree of care com- intestate had become a condition or circummensurate with the known danger. Whether stance; in other words, whether the defendthe defendant discharged this duty would, on the evidence in this case, be a question of fact. Lindsay, Adm'r, v. Canadian Pacific R. Co., 68 Vt. 556, 35 Atl. 513, and cases there collected.

ant's wrongful conduct contributing to the accident was in operation at the moment it occurred or became inevitable. While the law under the doctrine of the "last clear chance" contemplates only the subsequent negligence of the defendant, the negligence, if such it was, in failing to provide a headlight was continuous to a time when the accident became inevitable, which answers the second requirement of the doctrine. Lloyd v. Albermarle, etc., R. Co., 118 N. C. 1010, 24 S. E. 805, 54 Am. St. Rep. 764; Dyerson v. Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207, note 55 L. R. A. 418.

There was no evidence that the motorman himself was at fault in not seeing the intestate sooner. The negligence, if such it was, in failing to discover him in season to prevent the accident was due to want of sufficient light on the car. But the duty to keep a lookout for travelers on the bridge would not be discharged by vigilant watch on the part of the motorman, in the absence of means to make the lookout effectual. There was evidence that with a suitable headlight the intestate would have been visible to the motorman from a point at least 100 feet west of the bridge, a space amply sufficient to stop the car before it reached him. It follows that the question of defendant's negligence in this regard was for the jury, and in dealing with the "last clear chance" doctrine must be assumed. We have then a situation created by the negligence of both parties, and it remains to consider: (1) Wheth-anticipated. The want of a headlight neceser the plaintiff's negligence had ceased to be operative and become a mere condition or circumstance of the accident; and (2) whether there was, in contemplation of law, subsequent negligence on the part of the defend

ant.

Moreover, it was a question for the jury whether ordinary care did not require the motorman to approach and cross the bridge with the car under such control that it could be stopped within the space that he could see ahead, assuming that he was bound to anticipate the presence of persons there. The law would require him to exercise the degree of care commensurate with known dangers, which would include those reasonably to be

sarily increased the difficulty of keeping an effectual lookout, and was a circumstance affecting the rate of speed at which the car might with prudence be driven across the bridge. Negligence in this regard, if found, would clearly intervene after the negligence of the intestate.

It follows that the evidence made a case for the jury under the doctrine of the "last clear chance," and that the intestate could not be held to be guilty of contributory negligence as a matter of law.

[7, 8] Exceptions were taken to the admission of certain photographs of the bridge and

There would seem to be little doubt that the question of the first element of the doctrine of "last clear chance" was for the jury. The construction of the bridge was such that there was at best but slight opportunity in the darkness for the intestate to escape, after discovering his peril, except as he attempted to do. The ties rested on timbers running lengthwise of the bridge, and these in turn rested on steel floor beams sevy- of the railroad track in the vicinity. The eral feet apart, and not wide enough for very objection was that conditions had not been secure footing, even if they had been discov-shown to be the same as they were at the erable in the darkness. The ties outside the time of the accident, and more particularly track did not afford a place of safety, as they were practically covered by the overhang of the car. Besides, the intestate was confronted with a sudden emergency, involving not only his own safety but that of his companion as well. On this evidence the jury might find that a time came when the intestate was powerless to save himself by the exercise of due care, while there still remained an opportunity for the defendant, in the exercise of such care, to avert the acci-ification of photographs, plans, etc., renderdent.

[6] We think the question whether there was negligence chargeable to the defendant, intervening after that of the intestate had ceased to operate, was also for the jury. The test on this branch of the case is whether there was evidence tending to show that

that the different photographs did not show the same arrangement of the boards through the bridge. The photographs were all taken the forenoon following the accident, and there was testimony that the boards remained in the same relative position. The only respect in which it is claimed there was any possible change of conditions was in the arrangement of the boards, and as to this no question was made in the evidence. The ver

ing them admissible in evidence, presents a preliminary question of fact for the determination of the trial court. If there is evidence tending to show that they are sufficiently accurate to be helpful to the jurv. the ruling admitting them will not be disturbed on review. Hassam v. Safford Lum