Orleans County monitor. [volume] (Barton, Vt.) 1872-1953, 1897-02-15
BARTON VERMONT, MONDAY, FEBRUARY 15 1897

amined, she remem berS no one in partic-
ular who passed through that passage the
night of the accident. She first learned of
the accident by hearing the children cry;
she went out and saw the body of the
child. Plaintiff rests.
Deposition of Mr.. Williams civil engi-
neer, as to surveys and maps of the tracks
admitted for the defendants use in the
case, also the testimony in regaad to sur
veying the roads for the B. & M. R. r.
Mr.. Barney, the engineer, lives in Nor
risvilla, has been an engineer about 16
years and fireman between two and three
years thinks he knew the rules of the en-
gineer and fireman and their respective
duties. He commenced work in the shunt-
ing yard here in 1892; the duty of the gang
was shunting, making up trains, etc., ex-
cept when out on the road, helper, he
was in the yard of the G. Pa B. & M. rail-
roads; his hours of work were from p.
m. until a. m. part of the they had anoth-
er gang. He had occasion to go down
where the accident happened very often;
he told about going down after the car on
the I'd day of July about the same as
Woodbury. testified. Mr.. Shepherd gave
him the order. He said he saw the child
between the engine and car as the engine
passed over it and tried to stop and did
as soon as possible, but could not until
the engine and two cars had passed over
the body. Cross examined, he could not
tell whether he whistled for brakes or
not when he saw the child between the
engine and car.
Shepherd and Lazell, others of the yard,
testified to materially the same as Wood
bury, Shepherd said he told them they
had better let the body alone until the
authorities came, but when he returned
the body had been removed.
Thejudge charged the jury as follows:
On the I'd day of July, 1894 Aline Pelkey
aged fifteen and one-half months was kill
ed. An administrator was appointed who
has brought this suit and who may recover
damages, if the defendants wrongfully
and by neglect of their duties killed this
child; by defendants 1 mean those men
who were on engine. The rule whic b
should govern the defendants is: That in
the running of ira ms they should ase
proper care and not neglect their duties
if they performed their duties with care
then the plaintiff should not recover. The
plaintiff say that they were not using the
the proper engine and that they had no
fireman on this occasion. Ordinary care
means differently in different cases, for
example, the engineer might have been
justified in running at higher rate of
speed when not near any crossings than
when hewas where people were constant
Iy crossing the track. You take the
question, were the trainmen neglectful of
their duty? Take it from the testimony
and satisfy yourself. You must be salts
fed also that the mother was in no meas
ure neglectful of her child. If you find
that mother was negligent in leaving
the child with Rose Martin, then there
can be no recovery. But if this is a mat
ter of ordinary care, the next question is,
was Rose Martin negligent in doing what
she did, in leaving Aline to go around the
house after the other child, if she was neg
ligent then there can be no recovery. If
d that the defendant was negligent
and that this negligence was not contrib
uted to by the mother or the little girl,
then you should return verdict for the
plaintiff 1t is no defense that it was neg
ligence in moving into the house. AS l
have said, the acts of these servants are
acts of the defendants; if you are aatisfed
that the R. r. Co. were negligent through
these servants, then the defendant was
negligent, whether those men are liable to |
the r. r. Co. or not. If you return ver-
dict for the plaintiff this verdict is gov
erned by the statute, though it will be |
hard to tell what the damage should be. |
The child might not have lived, she might |
have lived and been an invalid; on the
other hand she might have lived and been |
of great value; it is hard to say and must |
be left to your judgement what the damage |
would be. There is one matter it is well |
to speak of; If it was neglect in Mrs. Pei |
key leaving the child with Rose aud she |
was not negligent then that would not |
bar the plaintiff from recovering.
Verdict, that the plaintiff recover $2S3. .83. |
n NJ II