The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1885-03-18
Washington County Court.


hat "when railroad company has con-
structed a railroad across public highway
by passing upon, over or under the travelled
part thereof, the corporation shall keep in
good and sufficient repair, and rebuild when
necessary, bridges, culverts, crossings, and
other constructions made for the accommo-
dation, safety and convenience of the public
travel on the highway, over, under, or upon
such railroad. And a railroad corporation
so constructing a railroad across a highway,
shall be liable to the town within whose
limits the crossings are for damages occa-
stoned to such town by reason of such cor
poration's not complying with the provi-
sions of this section and such liability
shall extend to expenses incurred by the
town in connection with actions against it
by reason of such noncompliance" 1t ap-
peared on trial that on the 29th day of Octo-
Der, 1880, Orlando g. Fassett of Warren
was severely injured at the Latham Cross
ing +" so-called in Roxbury; that at the
time of the building of the railroad at this
point in 1S4S fill of about six feet was
made across the highway and that in order
to restore the highway, approaches were
built by the corporation on each side OF the
crossing; that the highway crosses the rail-
road at this point at nearly right angles,
then makes a sharp curve toward the
north, thence running nearly parallel with
the railroad; that there was high bluff on
the westerly side of the railroad and i'm
mediately north of the crossing, so that a
south would be unable to see a coming
train until within about forty feet of the
crossing. On the morning of the injury Mr..
Fassett and his wife were driving from
Roxbury to the fair at Northfeld, and when
within about thirteen feet of the crossing
they discovered the mail train approaching
from the north at a distance of about one
hundred and twenty feet. Because of the
narrowness of the approach and the height
of the embankments he deemed il safer to
1... thA IL han TO- oft mt fn
turn his team around; he succeeded in
crossing the track safely, but when about
ninety feet from the crossing and while on
the curve of the highway, his horse was
frightened by the whistling of the locomo-
tive and they were thrown down the en-
bankment about three feet, striking at a
point about one hundred and twenty feet
from the crossing. Mr.. FaSsett was rem
dered insensible by being severely injured
in his spine, causing partial paralysis OF his
limbs, from which he has never recovered.
Notice was served on the town of Roxbury,
claiming damages and alleging the highway
to be insufficient because there was no
railing to prevent teams going OIL the en-
bankment, and suit was brought returnable
to the March term of county court, 1880,
claiming damages to the amount of 1000.
The town of Roxbury served notice on the
railroad corporation to come in and defend
the suit, but the corporation neglected so to
do and defence was made by the town.
Inc case was Urleu dU Uut september ttTU,
1881, and the plaintiff recovered the sum OF
81 ,997 81 and costs, which sum together
with the costs and expenses of the suit,
were sought to be recovered in the present
action. The defendant corporation claimed
that as the statute upon which this suit was
| founded was not enacted until after their
railroad was built, and that as the charter
of the Vermont Central Railroad was made
not subject to amendment, alteration or re-
peal, the statute was in derogation of their
chartered rights, and therefore void as to
| them; that the charter gave them the right
to cross highways, provided they restored
them to their former state and usefulness as
near as practicable, to the acceptance of the
seectmen of the town or in case of their re-
fusal to the acceptance of commissioners to
be appointed by two Judges of the supreme
court; that the crossing in dispute had been
accepted by the commissioners, aud that its
| liability at said crossing therefore was
ended; that the place of Mr.. Fassetts in
jury which was without the surveyed limits
| of the railroad, as conceded, was not such
" other constructions as they were bound
to keep in repair under the statute, there
fore they were not liable. Judge Powers
charged the jury that the statute in question
was not in derogation of the chartered
rights of the railroad company, but was
rather in the nature of a police regulation,
and that if the jury should find that the en-
bankment where Fassett was injured was a
part of the crossing or its approaches made
by the railroad company for the conven-
fence and safety of the travelling public,
whether within or without the surveyed
limits of the railroad, the defendant was
liable. He also submitted special questions
to be answered by the jury; whether the Sc
lectmen had ever accepted the crossing,
whether the commissioners had ever ac-
cepted said crossing, and which had kept
the approaches in repair, the corporation or
the town. The jury returned general
verdict for the plaintiff for the sum of
S3,S4. 30 and its costs, and special verdicts
that the crossing had not been accepted
either by the selectmen or commissioners,
and that it had been kept in repair by the
town. The defendant excepted to the hold
ing of the court as to the effect of the stat
ute on its chartered rights, and as to their
liability for the want of any repairs outside
of the surveyed limits The exceptions
were allowed and the case will go to the
supreme court to settle these questions. b.
f. Fifeld, w. p. Dillingham;, c. w. Porter
and Smith & Noble for the defendant; 5. C..
Shurtleff, John III. Senter and III. w. Kemp
for the plaintiff.
Myra D. Smith Us. S. ID. Hollister was the
next case for trial This was an action on a
prommissory note of $3.50 purporting to be
signed by the defendant. After the jury
were impaneled, the defendant, who claimed
that the note was forgery, found that his
attorney had neglected TO file notice to
that effect, as required by the rules of court,
and could not therefore make that defence,
so the case was taken from the jury. This
will either result in a continuance under
terms or a Judgment for the plaintiff in the
discretion of the court. S. G. Shurtleff for
the plaintiff j. p. Lamson for the defend-
ant. This case closed the civil list and the
court took recess until Tuesday at two
o'clock.
Yesterday afternoon the case OF State Us.
Clark w. Sanders for the murder of Daniel
Carr was called. The circumstances of this
tragedy, which occurred Saturday after
noon, August 23d, 1884, and was fully re-
ported in the next issue of this paper, are
still fresh in the public mind The deed
was committed in broad daylight, in the
presence of witnesses and no attempt was
made then, or has been made since, to deny
that Sanders did the shooting. There can,
therefore, be no question as to these facts
and the defence will be made upon the
ground of insanity. The state will intro
duce only such a number of witnesses as
will be necessary to present to the jury the
circumstances connected with the death OF
Carr and to establish the fact that Sanders
act was the direct cause of it, This will
require about twenty five witnesses The
respondents counsel will then interpose
, insanity as defence, probably without at
tempting any denial of the cts alleged
and the contest will all be made on this
point. 1t is a nice question of law, not YET
passed upon in this state, whether in such q
, case il Is incumbent upon the state to prove
the respondent sane or whether IL is neces
! sary for the defence Ia show by prepon
derance of evidence that he is insane. In q
majority of states in which the question has
been raised the latter view has prevailed