Adam H. v. County of Orange

<p>CasF for personal injuries. Plea, the general issue. Trial by jury at the March Term, 1901, Orleans County, Tyler, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted.</p> <p>Did the court err in ordering a verdict? We discuss this question first upon the assumption that the law of Vermont is to control. It cannot be said, as matter of law, that defendant was not negligent in locating and maintaining this switch in such dangerous proximity to its track. Davis v. R. R. Co., 55 Vt. 91; 1 Shear. & Red. Neg. s. 189. The switch could, have been located on the other side of the track, or a few inches-further back, and been safe. The servant has a right to assume that the master has and will perform his full duty in regard to furnishing a safe place in which to' work. The mere-fact that this accident happened shows that defendant was negligent. Houston v. Brush & Curtis, 66 Vt. 333; Johnson v. Railway Co., (Minn.) 41 Am. & Eng. R. R. Cases 293; Allen v. Railway Co., (Iowa) 5 Id. 620; Wood v. Railway Co., (Tenn.) 11, Id. 525; Hall v. Railroad, 16 Eed. Rep. 744;. Railway Co. v. Davis, (Ala.) 9 So. Rep. 252; Pidcock v. Railroad, 1 E. R. A. 131; Railroad v. Russell, 91 111. 298; Whipple v. Railroad, 5 Am. & Eng. R. R. Cases 517; 3 Elliott on Railroads, ss. 1269, 1272; Carbine’s Admr. v. R. R. Co., 61 Vt. 348-</p> <p>It cannot be said, as matter of law, that plaintiff was guilty of contributory negligence. This question is one of fact, unless the “facts and circumstances are so decisive * * * as to leave * * * no room for opposing inferences.” Gorman’ s Admr. v. R. R. Co.,-65 Vt. 133; Vinton v. Schwaib, 32 Vt. 612. In this case the plaintiff had not been warned, knew nothing of the danger, had had no occasion to observe it, had found other switches at a safe distance, and the danger was not an obvious one. Whipple v. Railroad Co., 5 Am. & Eng. R. R. Cases 520, is much in point. Cramdal v. Railroad, 35 Atl. 307; Wood v. R. R. Co., su