roadbed; that on June 24th it went from Island Pond to Richmond and came back on the 27th; that between September 11th and November 12th it was out of Island Pond (the witness thought) in defendant's shop in Montreal, as it was given general repairs about that time; that it left Island Pond on December 22d and came back on the 27th. Every freight train and every passenger train which comes into, or leaves, Island Pond, is interstate or international.

[1] In simple form the question under discussion comes to this: Engine 1018, making its regular trips, arrived in Island Pond at 5 p. m., on the day of the accident, as an instrumentality of international and interstate commerce, and left there at 6 a. m., next morning, as such an instrumentality. Did it, by being detached from the train it hauled in, lose its international and interstate character so that the plaintiff, when engaged in coaling it, was not employed in such commerce, within the meaning of the Employers' Liability Act?

Supplying the locomotive with coal and water, and looking after the fire, on coming into that terminal, were acts essential to the locomotive's further efficient operation, but having no tendency to show an interruption in its international work; but rather, in the circumstances including the time of day and the early hour of its departure the next morning on its regular trip, they were acts which might reasonably be considered as tending to show preparation for that run. Considering therewith that the evidence was such as (we think) reasonably to warrant a finding that this locomotive was destined for such run, by an order issued prior to the time of the accident, it seems clear that, as the case stood, the question of whether the engine and the plaintiff were, at the time in question, engaged in an act so closely related to international or interstate commerce as to

be practically a part of it, was for the jury to determine under proper instructions. Lynch v. Central Vermont Ry. Co., 89 Vt. 363, 95 Atl. 683; Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 Atl. 908. It has been held by the Supreme Court of the United States that, if an employé is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the federal Employers' Liability Act, although the accident occurred prior to the actual coupling of the engine to the interstate cars. New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.

The other two grounds of the motion are so connected as to make it more convenient to consider them together. It is unnecessary to repeat the facts already stated leading up to spotting the engine to receive coal. Norris

just what took place resulting in the injury, there was no direct testimony except that given by the plaintiff and by Norris (called as a witness by plaintiff), the only persons present, or having any knowledge thereof. The former testified that, standing on the side of the tender, the engine being at a standstill, he reached up with the poker having a hook on the end of it, to pull the chute down, and as he got hold of the chute and "went to give a quick pull, *** the engine started quick," his feet went out from under him, and he fell over the side of the tender, to the ground. The latter testified that just before the plaintiff fell the engine was standing still with the brakes set, the throttle closed, and the reverse lever in the center; that the witness did not move the engine after it was spotted to receive coal; that he watched the plaintiff and saw him when he went over; that plaintiff, when he fell, was reaching for the chute, but did not get hold of it; that the witness does not know whether plaintiff's feet slipped, or the poker slipped.

It should be noticed in this connection that in effect the plaintiff's testimony was that the engine started and simultaneously therewith he fell. He did not undertake to state the cause of the engine's starting. It should be further noticed that Norris simply says that "just before" plaintiff fell the engine was standing still, and that he did not move it. He does not say that the engine did not start, nor that plaintiff's fall was not simultaneous therewith. So in these important particulars there was no conflict in the testimony given by the two.

There was no evidence in the case tending to show that Norris moved the engine; on the contrary, the evidence precludes such a theory. So the only inference that could be drawn, as to the cause of the accident, was some defect in the engine, or want of care in trial no claim of defect was made, the sole Since in the managing and controlling it. question on this branch of the case is: Did the evidence fairly tend to show the efficient cause to have been negligence in managing and controlling the engine? There was no evidence of such negligence, unless the principle res ipsa loquitur applies, concerning which, more anon.

It appeared that the track where the engine was placed in front of the chute was level. One of plaintiff's witnesses, a locomotive engineer of much experience, being asked, as an expert, what had to be done to start an engine like 1018, when standing stock-still on the track on a location like that, answered:

"Assuming that the engine was left properly at that place, the reverse lever would have to be moved away from the center a sufficient distance and the throttle opened, also assuming the

(108 A.)

Continuing, the witness further testified sequently, the principle res ipsa loquitur is that, assuming an engine like 1018 is stand-applicable. Houston v. Brush & Curtis, 66 ing still on a level, if the brakes are not Vt. 331, 29 Atl. 380; Desmarchier v. Frost, properly set the engine may start automati- 91 Vt. 138, 99 Atl. 782. While this principle cally without any other action on the part of is of limited application, the unsuccessful atthe driver; also that, if the throttle or the tempt of the plaintiff to show the precise act lever is not properly set, the engine so stand- of negligence did not prevent him from relying may start of its own motion. In cross-ing upon the doctrine of the maxim. Golden examination he said that, in order to stop an v. Mannex, 214 Mass. 502, 101 N. E. 1081; engine of that kind, the steam must be shut Hull v. Berkshire Street Ry., 217 Mass. 361, off by pushing the throttle in, and the lever | 104 N. E. 747; Cleary v. Cavanaugh, 219 at the center controls the ports which let Mass. 281, 106 N. E. 998. The motion for a steam into the cylinders and, assuming the directed verdict was properly overruled. engine is in good condition, when the lever is in the center the ports are closed and no steam can get into the cylinders, and the engine cannot start, whether the brakes are on or off; that if the lever is far enough away from the center to overcome the lap of the valve over the steam ports to admit steam, or if the engine, by reason of being out of repair, leaks steam into the cylinders, the engine may start of its own motion. There was no attempt on the part of defendant to explain the happening of the accident.

All other questions presented in argument relate to the charge. The first of the exceptions of this class was to the submission to the jury of the question of interstate commerce, and the eighth was to the submission of the question of whether the locomotive started of itself. In effect, these two exceptions have already been disposed of.

The fifth, sixth, and seventh of these exceptions relate to the charge touching the finding of the jury on the question as to whether, at the time of the plaintiff's injury, locomotive 1018 was engaged in interstate commerce, and the basis of such finding. We think the instructions in this respect were substantially in accord with the holdings above, on this branch of the case under the motion for a verdict, and without error.

[4] Exception was taken to the charge on the question of future damages. The jury were instructed that it was proper for them to consider plaintiff's loss of time, not only up to the time of the trial, but also such inability and incapacity to work in the future, as they should find established by the evidence; that they must use the evidence as a basis for any allowance they might make in this regard; that it could not be done upon speculation or conjecture; also, that they had a right to include such damag

[2] It was conceded by defendant that, in moving 1018 to the coal chute and spotting it there to be coaled, Norris was acting in the line of his duty; but, in connection with this concession, defendant claimed that, if Norris moved the engine after it was thus spotted and just before the plaintiff fell, there was no reason for his so doing; and there was nothing to indicate it was in the line of his duty, because, admittedly, the engine was properly placed to be coaled, in the first instance. The case of Ploof v. Putnam, 83 Vt. 252, 75 Atl. 277, 26 L. R. A. (N. S.) 251, 138 Am. St. Rep. 1085, is relied upon as an authority for the proposition that if Norris moved the engine for his own purpose, or at his own caprice, defendant is not liable for injuries resulting therefrom. But since such a cause was completely negatived by the evi-es for his pain and suffering, past and future, dence, this position need not be further noticed. By that same authority, if, in placing the engine to be coaled, Norris negligently left the lever away from the center, or the throttle open, so that steam escaped into the cylinders, by reason of which the engine started automatically, or if he negligently left the brakes in such a way that the engine could and did, by reason thereof, so start, his wrongful acts were in the performance of the duties of his employment, and the defendant is responsible for resulting injuries. [3] The evidence showed the accident to have been such as in the ordinary course of things does not happen where those having the management and control of a locomotive like the one in question, standing still on a level track, use proper care, and the circumstances surrounding it were such as to create a reasonable probability, in the absence of explanation by the defendant, that the accident arose from want of proper care. Con108 A.-22

measured in the same way, as in their judg ment, on the evidence, the plaintiff was entitled to. The grounds of the exceptions were that the length of time of such inability and incapacity to work, and the amount of future pain and suffering, were, on the evidence, matters of pure speculation. But we hardly think this was so. Apart from such evidence as could be given only by medical experts, the plaintiff testified fully regarding his injuries, his pain and suffering, and his inability to work up to the time of giving his testimony. Expert evidence was introduced, showing the character and extent of his injuries, his physical condition since receiving them, including at the time of the trial, when an examination of the plaintiff was made by three physicians, witnesses in the case. One of these physicians attended him immediately after the accident, and thenceforth. He testified that one or two ribs underneath the right shoulder-about the third or fourth rib

Judgment affirmed.

(93 Vt. 378)

DE NOTTBECK v. CHAPMAN. (No. 155.)
Bennington.

(Supreme Court of Vermont.
Oct. 7, 1919.)

counting down-and one on the left side, | Wallace v. Pennsylvania R. R. Co., 222 Pa. were broken, from which he suffered much 556, 71 Atl. 1086, 128 Am. St. Rep. 817; 8 R. pain; that the examination made on the day C. L. 544, § 94. of testifying showed that plaintiff's ribs seemed all right, but he complained of a stiffness of the shoulder, and when he moved the shoulder blade it, noticeably, did not move as the other one did, and there was a certain atrophy of the muscles of the right arm; that the examining physicians experimented by pricking him in the back with a large needle, and in some places he did not seem to feel it, seemed to feel it more on the 1. TRIAL 174-MOTION FOR DIRECTED VERleft side than on the right, but still it was not entirely lost; that the atrophied condition of the back was due to the blow, and indicates trouble with the nerves; that the blow on the shoulder, and the fact that he did not feel the needle "way out on the right side," show that the nerve is not as good; that his condition has improved, and the witness thought improvement would continue.

The other examining physicians testified to finding the same condition, but more in detail. One of them said whether the plaintiff's recovery would be complete eventually, he could not say; that it was not impossible that he was having a beginning degeneration of the nerves from the terminal ends, and that this condition would grow worse; but the witness thought he would improve. The other physician had examined the plaintiff twice before within a week. He testified that he should not think the plaintiff would be well a year hence, and might be worse off; and, being asked what he would say as to plaintiff's being well within two years, the witness said such a case was very slow in recovery, and at plaintiff's age the prognosis was worse than though he were a young

man.

DICT MUST POINT OUT GROUND.

Where plaintiff's motion for directed verdict failed to point out the precise ground on which based, its overruling was not error.

2. APPEAL AND ERROR 1053(7)-HARMLESS

EVIDENCE ON WITHDRAWN ISSUE.

Plaintiff was not harmed by evidence er-
roneously received on an issue undertaken to
be raised by defendant, but wholly withdrawn
from consideration of the jury by the court.
3. WITNESSES 178(1)—INAPPLICABILITY OF

EXCEPTION TO RULE AS TO TRANSACTIONS
WITH DECEDENT.

Where plaintiff in ejectment called defendant as a witness and examined her in chief concerning a contract between her deceased mother and plaintiff and its provisions, plaintiff's deposition offered in her own behalf is inadmissible to contradict defendant on the point whether the contract was made by plaintiff with defendant's her two daughters, defendant and another, dedeceased mother alone, or with the mother and spite G. L. 1891, 1892, permitting a surviving party to a contract in issue, and on trial to testify in his own favor to meet or explain the testimony of living witnesses produced against him.

4. WITNESSES 321, 402-OWN WITNESS

CANNOT BE DISCREDITED DIRECTLY.

A party must not be allowed directly to discredit his own witness, but collaterally and in effect can do so by introducing competent evidence tending otherwise than the witness' testimony.

5. LANdlord and TENANT

285(5)—PARTIES

TO CONTRACT FOR TENANCY A JURY QUES-
TION.

The evidence showed that the nature and extent of plaintiff's injuries, his past improvement, and his condition at the time of the trial, were such as to render it practically impossible to tell with any great degree of certainty the length of time before complete recovery. Mere conjecture and speculation can form no basis for prospective dam- In ejectment by the owner of realty against ages. But the expert evidence tended to defendant who claimed right to possession unshow the probable future progress of the im-der a contract between plaintiff, defendant's provement, and (in the opinion of one of the provement, and (in the opinion of one of the witnesses) that a year's time was too short in which to make full recovery. The evidence furnished a reasonable basis for the belief that for a year, at least, the plaintiff's inability to work, and his pain and suffering, would continue. The consideration of the jury in this respect was, by the charge, was made by plaintiff with defendant's mother expressly confined to the evidence. The plaintiff was entitled to have the question submitted to the jury, and we see no error in the instructions given. See Ryder v. Vermont Last Block Co., 91 Vt. 158, 99 Atl. 733;

own mother, defendant, herself, and another daughter, whether the real parties to the contract were plaintiff and defendant's mother, or plaintiff, defendant's mother, and her two daughters, held for the jury under the evidence.

6. WITNESSES 144(4, 14)-COMPETENCY TO

TESTIFY AS TO CONTRACT WITH DECEDENT. If contract relied on as defense in ejectment alone, plaintiff as survivor of two was not competent to testify, it not appearing she came within special exceptions mentioned in G. L. 1891, 1892, the disqualifying statute; but, if contract was between plaintiff on one side and

(108 A.)

on the other, defendant, her deceased mother, | defendant's mother, a question which defendand another daughter, then, despite the mother's ant undertook to raise in defense of the acdeath, neither party to the contract in issue and on trial was dead within the statute, and

death of defendant's mother did not affect competency of plaintiff.

7. TRIAL 260(1) - SUBSTANTIAL COMPLI

ANCE WITH REQUEST FOR CHARGE.

Where the charge given was a substantial compliance with plaintiff's request, refusal of the request is no cause for reversal of judgment, though the instruction given in such respect might have been less involved and plainer; it embodying no legal error.

tion:

But this issue was, by the court, wholly withdrawn from the consideration of the jury. So if the evidence were erroneously received, the plaintiff was not harmed by it. Armstrong v. Noble, 55 Vt. 428.

[3, 4] The defendant was the first witness called by the plaintiff to testify in her openhome with her mother on the place in quesing case. She testified in chief to living at tion, owned by the plaintiff, as long as the mother lived, and thereafter continuing to live there; that the plaintiff made an ar8. TRIAL 256(1)-NECESSITY FOR REQUEST rangement with the mother to come down to

FOR FULLER INSTRUCTION.

A party cannot reach by an exception point- that place to rear and take care of poultry A party cannot reach by an exception point- for her; that the mother moved there in ing to an omission to charge on a given sub-for ject the defect or shortage that instructions June, 1902, under an agreement whereby the thereon should have been fuller and with more plaintiff was to have three-fourths of the specific reference to the facts in evidence.

9. LANDLORD AND TENANT 114(1) TENAN

CY FROM YEAR TO YEAR SHOWN.

Where plaintiff put defendant's mother in possession of land to raise fowls, plaintiff to furnish the feed, and to have three-fourths of the eggs, and one-half of the chickens, and defendant's mother to have a fourth of the eggs and half of the chickens, and such arrangement continued for 15 years until defendant's mother died, when defendant continued to care for the poultry, and continued to furnish eggs and chickens the same as before, defendant became plaintiff's tenant from year to year.

eggs produced and one-half of the chickens

raised, and the mother, one-fourth of the eggs and one-half of the chickens, the plaintiff to furnish the feed; that the understanding was that the mother was to live in the house on the place and take care of the fowls; that this continued until July, 1917, when the mother died, after which the defendant continued caring for the poultry, and furnishing eggs and chickens to the plaintiff, the same as before; that the plaintiff took all her bens and chickens away from the place in November, 1918, having none there later. In cross-examination the witness said

Exceptions from Bennington County Court; that, when they moved onto plaintiff's place Frank L. Fish, Judge.

in 1902, the family consisted of the mother and her two daughters, defendant and her Action by Cecelia De Nottbeck against Resister, now Mrs. Dillingham; that the arna B. Chapman, personally and as administratrix of Elizabeth Chapman, deceased. Verdict and judgment for defendant, and plaintiff excepts. Judgment reversed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Wm. B. Sheldon, of Bennington, and Chas. H. Darling, of Burlington, for plaintiff. Holden & Healy, of Bennington, for defend

ant.

WATSON, C. J. This action of commonlaw ejectment is to recover the possession of real estate situated in Dorset, known as the Hodge place. It is brought against the defendant personally and as administratrix of the estate of her mother, Elizabeth Chapman, deceased.

[1] At the close of the evidence, plaintiff moved that a verdict be directed in her favor; but the motion failed to point out the precise ground on which it was based, and so the overruling of it was not error. No authorities need be cited.

rangement by which the mother was to go there to live was made by the plaintiff on the one side, and by the mother and her two daughters on the other side; that the agreement was that "we were to go there to take care of these fowls for her (plaintiff) for our rent, in payment for the rent of the premises," and, in addition to the rent, have part of the eggs and chickens, as before stated, the plaintiff to furnish the feed, and that this arrangement was for the term of one year.

The plaintiff's deposition being later offered in her own behalf, question 14 and all other questions dealing with the contract between the plaintiff and Mrs. Chapman were objected to on the ground that, one party to the contract being dead, the survivor was incompetent to testify. By question 14 deponent was asked whether she made an arrangement with Mrs. Chapman, in her lifetime, whereby the latter was to enter and occupy the premises in question. The answer was that she did, either by herself or by (her agent) Miss Edwards. By question 24, whether the arrangement was made with

[2] Error is claimed to have been commit- Mrs. Chapman alone, or with her and her ted by the court in admitting evidence on the two daughters. The answer was that it was question of repairs made on the buildings by with Mrs. Chapman only, never with any one

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

else.

[7] The plaintiff excepted to the failure of the court to comply with her third request.

This testimony was offered by the | Chapman and her two daughters, then neither plaintiff for the purpose of contradicting the party to the contract "in issue and on trial" defendant on that point, its admissibility be- was dead, within the meaning of the statute, ing claimed under the clause of the statute and the death of Mrs. Chapman did not af (G. L. 1891, 1892), permitting a surviving par- fect the competency of the plaintiff. Read ty to a contract "in issue and on trial" to v. Sturtevant, 40 Vt. 521; Paddock v. Potter, testify in his own favor "to meet or explain 67 Vt. 360, 31 Atl. 784; Pope v. Hogan, 92 the testimony of living witnesses produced Vt. 937, 102 Atl. 937. It follows that the offer against him." Under this offer and claim, of the plaintiff to testify in her own behalf, the exclusion was not error. The defendant since the other party to the contract as teswas not a witness produced against the tified to by the defendant, was not dead, plaintiff. She was a witness produced by the should have been favorably entertained, and plaintiff, and was examined in chief concern- the ruling to the contrary constitutes reversing the contract and its provisions. On be- ible error. Whether the plaintiff's testimony, ing cross-examined by her own counsel the had it been received under this offer, was witness testified more fully in detail relating proper to be considered by the jury in reachthereto, including the parties between whom ing a verdict depended on how they should the contract was made, all strictly and well find the contract to be as to parties, under within proper cross-examination. The clause proper instructions from the court. of the statute invoked did not apply. And we need not consider whether the offer fell within the principle of the general rule that Defendant says the charge given shows a a party must not be allowed directly to discredit his own witness; for the plaintiff, as she properly might without infringing upon this general rule, even though it collaterally had the effect to discredit the witness, later introduced competent evidence tending to show that the agreement in question was for no specific term, and was made by the plaintiff (through her agent) with Mrs. Chapman alone, her daughters being in no legal sense parties to it; that by the agreement Mrs. Chapman was to occupy the Hodge place, not as tenant of the plaintiff, but in connection with the services she was to render there in rearing and taking care of the poultry for plaintiff. This evidence was of vital importance, for if such in effect was the agreement under which Mrs. Chapman entered into the occupancy of the place, the notice to quit, given to defendant, was sufficient; but if the relation of landlord and tenant was this. At most, it can be justly claimed only created by the agreement, then the notice was insufficient in length of time to answer the requirements of the law, and this action cannot be maintained.

[5, 6] As the evidence stood, not including testimony given by the plaintiff, it was for the jury to say who the real parties to the contract were. If the contract was made with Mrs. Chapman alone, as the party on one side, the surviving party was not competent to testify, it not appearing that she came within the special exceptions mentioned in the disqualifying statute. But if the party to that side of the contract consisted of Mrs.

substantial compliance, and so it does to an extent not warranting a reversal based on a shortage therein. Doubtless the instructions in this respect might have been less involved and plainer, yet, short of legal error, there is no cause for reversal of judgment. Durgin v. Danville, 47 Vt. 95.

[8, 9] Exception was taken to the failure to charge what constitutes a tenant at will under the facts of the case; also to the charge in allowing the jury to find that the defendant was a tenant from year to year at the time of the bringing of this suit. As to the first, it is said that the court did not instruct the jury concerning the law in case the defendant went into and remained in possession for the purpose of caring for the plaintiff's fowls, provided the occupancy was incident to such purpose. But the record shows that the court attempted to do just

that the instructions in this respect should have been fuller and with more specific reference to the facts in evidence, a defect or shortage, if it be a defect or shortage, which cannot be reached by an exception pointing to an omission to charge on the subject. Magoon v. Before, 73 Vt. 231, 50 Atl. 1070. As to the second, the defendant's testimony was such that, if believed in its essential particulars touching the contract and the operations under it, the jury might properly find her to be a tenant from year to year when this action was commenced.

Judgment reversed, and cause remanded.