(113 A.) While under G. L. 2262, the trial court in its discretion may pass a cause or proceeding to the Supreme Court before final judgment, when exceptions are taken and filed, an exception does not lie to its refusal. and petitioner, if desiring to save her right, | ception; that the cause was thereafter should have proceeded in the legal manner. heard by the court, and final judgment ren. 2. Appeal and error 87(9)—Exception does dered for the plaintiff November 1, 1920; not lie to refusal of trial court to pass case that she caused a bill of exceptions to be to Supreme Court. prepared and presented to the judge for his signature, and he refused to sign the same; that she frequently requested the judge to pass the case to the Supreme Court, before final judgment, on the question of her right to a trial by jury, but he refused to do so. The answer admits these allegations, and alleges, further, that the bill of exceptions as drawn presented the single question raised by the overruling of the defendant's motion for a jury trial; that it was not presented to the judge for his signature until December 6, 1920; that the time for filing exceptions in that case expired December 1, 1920, and that for that reason the judge did Writ will not be refuse to sign such exceptions. In reply the petitioner alleges that at the close of the 3. Mandamus 166,2- Where replication was defective, averments of answer and those of petition which stand must be accepted as true on demurrer. Where the replication to the answer in mandamus proceedings was defective, all aver: ments of fact in the answer, and all material allegations in the petition which stand admit ted, must be taken as true on demurrer. Petition for mandamus is addressed to the sound discretion of the court, and the writ will trial in the original case she requested the never be granted when unavailing. 6. Exceptions, bill of 39(1)-Statute fixing time for filing applies to municipal court. Under G. L. 1647, the provisions of section 2258, fixing the time for filing exceptions, apply to municipal courts. Petition by Eliza C. Sherwin for writ of mandamus against Jed P. Ladd and another. On demurrer to the replication. Demurrer sustained, writ denied, petition dismissed and restraining order vacated. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. E. A. Ashland and John H. Mimms, both of Burlington, for relator. Theo. E. Hopkins, of Burlington, for respondents. SLACK, J. This is a petition for a writ of mandamus to compel a former judge of the Burlington city court to sign a bill of exceptions in a cause heard and determined by him, wherein one Brown was plaintiff, and this petitioner was defendant. The instant case was heard on demurrer to the rep lication. judge to pass the case to this court, before final judgment, on the question of her right to a trial by jury, and that she repeated such requests frequently before the time for filing exceptions expired, but does not attempt, otherwise, to meet the new matter set up in the answer. The demurrer challenges the sufficiency of the replication on the ground that the replication fails to meet, by traverse or otherwise, the allegation in the answer that the bill of exceptions in the original case was not seasonably presented to the judge for his signature. The demurrer must be sustained. That the replication is defective in the particular pointed out by the demurrer is too plain to admit of argu ment. The allegation of repeated requests to pass the case to the Supreme Court, etc., is immaterial. No court is required to comply with mere "requests." If a litigant desires to save his legal rights, he must proceed in a legal manner, and if he would have the judgment of this court he must come here in a proper way. Moreover, while the trial court may, “in its discretion," pass a cause or proceeding to this court before final judgment, "when exceptions are taken and filed," in the trial court (G. L. 2262), an exception does not lie to its refusal to do so. [3-5] The replication being disposed of, the case is for consideration on the petition and answer. All averments of fact in the answer, and all material allegations in the [1, 2] The petition alleges that the origi-petition which stand admitted, are taken to nal action was account; that before hearing be true. State v. Plumley et al., 83 Vt. 491, the defendant, petitioner herein, moved for a 76 Atl. 146. This being so, the writ must be trial by jury, insisting that she was entitled denied. The petition being addressed to the thereto under No. 91, Acts 1915, § 12 (G. L. sound judicial discretion of this court, the 1651), which provides that, “In civil causes, writ will never be granted when it will be either party shall be entitled to a trial by a unavailing. State v. Babcock, 51 Vt. 570; jury of twelve persons;" that the motion Kendall v. Aldrich, 68 Vt. 478, 35 Atl. 429. was overruled, and she was allowed an ex-The exceptions, if signed, could not avail the petitioner, because the time for filing them expired before she took steps to have them allowed. G. L. 2258; Hotel Vermont Co. V. Cosgriff, 89 Vt. 173, 94 Atl. 496; Mead v. Moretown, 72 Vt. 323, 47 Atl. 1072; State v. Webb, 89 Vt. 326, 95 Atl. 892. [6] The provisions of G. L. 2258, fixing the time for filing exceptions, apply to municipal courts. G. L. 1647; Jones v. Metcalf, 112 Atl. 831. At the time these proceedings were commenced, an execution had been issued on the judgment in the original case, and was then in the hands of the petitionee Lord, who was restrained from proceeding therewith pending the determination of this petition. he will remove himself before the train reaches the crossing. 6. Railroads 350 (33) - Negligence under last clear chance doctrine applied to tractor operator's injury held for jury. In an action for injuries received when plaintiff's farm tractor was struck by a train at a crossing, the question of the negligence under the last clear chance doctrine held for the jury. Exceptions from Windham County Court; Fred M. Butler, Judge. Action by Arthur L. Miller against the Central Vermont Railway Company. There was a verdict and judgment for plaintiff, dis-and defendant excepted. Judgment affirmed. The writ is denied, and the petition missed, with costs. The order restraining the petitionee Lord is vacated. (95 Vt. 69) Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Barber, Barber & Miller, of Brattleboro, for plaintiff. J. W. Redmond, of Newport, and W. R. MILLER v. CENTRAL VERMONT RY. Co. McFeeters, of St. Albans, for defendant. (No. 278.) (Supreme Court of Vermont. Windham. April 28, 1921.) 1. Railroads 327 (8) Tractor operator 2. Negligence 83-Last clear chance doc- The doctrine of the last clear chance is that, when the negligence of the defendant is proximate and that of the plaintiff is remote, an action can be maintained. 3. Railroads 338-"Last clear chance doctrine" applied. SLACK, J. The action is tort to recover for injuries to the plaintiff and damages to his farm tractor caused by a collision with one of the defendant's regular passenger trains at a grade crossing about one-fourth mile north of Vernon station, on the morning of April 13, 1917. At the close of all the evidence the defendant moved for a directed verdict on the grounds: (1) That there was no evidence tending to show negligence on the part of the defendant; and (2) that the plaintiff was guilty of contributory negligence as a matter of law. The motion was overruled, and the defendant had an exception. This exception we will now consider. The track for some distance in each direction from the crossing runs north and south. The plaintiff's house stands a few rods south of the crossing and west of the track. To get from his yard onto the highway and follow that east across the track it is necessary to make a sharp and continuous turn to the right. The morning of the accident the plaintiff drove the tractor from his yard onto the highway and followed that over the [Ed. Note. For other definitions, see Words crossing, but, owing to the curve in the highand Phrases, First and Second Series, Lastway just east of the track, and his inability Clear Chance.] to guide the tractor, he ran it off the north One's negligence in driving onto a railroad track without looking and remaining there until struck by a train will not bar recovery if the trainmen by the exercise of ordinary care had an opportunity to avoid injuring him after | his ability to avoid injury ceased. 4. Trial 178—Evidence considered favorable side of the highway and against a log, causto plaintiff on defendant's motion for direct-ing it to stop. The evidence was conflicting ed verdict. as to where the tractor then stood with reference to the defendant's track, but it appeared that it was where it would not have been hit by a passing train. The plaintiff testified that he thought the rear of it, which was the part nearest the track, was 5 or 6 feet from the east rail, and that he knew the projection of the train beyond the rail was two feet. So that while the tractor Where the evidence on an issue is conflicting, it should be considered in the light most favorable to plaintiff on defendant's motion for a directed verdict. 5. Railroads 320-Trainmen may assume traveler will avoid injury. Where those in charge of a train discover a traveler on the track, they may assume that (113 A.) stood where it first stopped it was not only in a safe place, but the plaintiff knew that fact. The case turns, therefore, on what occurred subsequently. The train in question was running on schedule time the morning of the accident. The plaintiff testified that he knew when it was due at the crossing, and knew in a general way the number of trains and amount of traffic over the defendant's road, that he was at the time an able-bodied man, and that his senses of sight and hearing were good: His evidence, which was estimates only, tended to show that from the crossing, and from any point 10 or 12 feet east of it, there was an unobstructed view of the track north at least 1600 feet. It appeared from actual measurements that this distance was more than 2000 feet. [1] The plaintiff testified, in substance, that after the tractor struck the log one Wright tried to move the log, but was unable to do so; that plaintiff looked for the train while Wright was thus engaged, and, not seeing it, decided to back the tractor away from the log, and did so as soon as he could start the tractor, which took from half a by the exercise of reasonable care and prudence have avoided the accident, and failed to do so. This court held in French v. Grand Trunk Railway Co., supra, relied upon by the defendant, that the evidence did not make a case for the jury on the question of last clear chance. There the plaintiff was crossing the defendant's track, at a public crossing, on foot, and was struck as he was stepping over the last rail. The evidence showed that when he went upon the track the train was so near the crossing that it was impossible for those in charge of it to stop it in season to avoid the accident. This fact was emphasized by the court in the following language: "He could have seen the danger and avoided it at a time when it was too late for the defendant's servants to stop the train and avoid a collision. There was no time when the defendant's servants could have stopped the train and avoided the injury, in which the plaintiff could not have avoided being injured by a vigilant use of his eyes, ears, and physical strength." So, too, in Flint's Adm'r v. Central Ver minute to a minute. It did not appear that mont Ry. Co., supra, we held that the evihe looked for the train again until the trac-dence did not raise a jury question under the tor was on the track and the train within 15 or 20 feet of the crossing. The evidence all tended to show that when the tractor moved away from the log the train was where the plaintiff could have seen it had he looked. This being so, he was negligent in backing onto the track in the way he did, and his case must fail unless saved by the last clear chance doctrine. Harrington v. Rutland Railroad Co., 89 Vt. 112, 94 Atl. 431; Flint's Adm'r v. Central Vermont R. R. Co., 82 Vt. 269, 73 Atl. 590; French v. Grand Trunk R. R. Co., 76 Vt. 441, 58 Atl. 722; Carter v. Central Vermont R. R. Co., 72 Vt. 190, 47 Atl. 797; Trow v. Vermont Central R. R. Co., 24 Vt. 487, 58 Am. Dec. 191. [2, 3] The doctrine of the last clear chance may be stated thus: When the negligence of the defendant is proximate, and that of the plaintiff is remote, an action can be sustained. Therefore, if there be negligence on the part of the plaintiff, yet, if at the time when the injury is committed it might have been avoided by the defendant by the exercise of reasonable care and prudence and could not then be avoided by the plaintiff by the exercise of such care and prudence, an action will lie. So the fact that the plaintiff was negligent in getting onto the track and in remaining there will not bar a recovery if the defendant in the exercise of due care had an opportunity to avoid injuring him after he could not avoid being injured. At the moment the plaintiff's ability to avoid the accident ceased, his negligence became remote; and that of the defendant then became proximate if at the same moment or later it could last clear chance doctrine. There the intestate drove upon the track with a single horse hitched to an open wagon. The horse was "very quiet, easy to manage, and not easily frightened by a train of cars or anything." and as it approached the crossing "was walking at a fair gait in the middle of the road and was under the complete control of the intestate." Ever after the intestate was within 16 feet of the crossing he had an unobstructed view of the track in the direc tion from which the train was approaching for 1500 or 1600 feet. He was in full possession of all his faculties; yet he took no means to discover the train until his horse's feet were on the crossing. He then saw the train, and at first partly stopped his horse, or pulled it back, as though to back up, and then urged it forward. He then had ample time to have backed off the track to a place of safety. Instead of doing so, however, he drove upon the crossing with full knowledge that the train was approaching, and then so near the crossing that it reached it before his wagon got over the track. In La Mountain's Adm'x v. Rutland Railroad Co., 93 Vt. 21, 106 Atl. 517, the deceased, at the time of the accident, was engaged in snowing a crossing. He obtained the snow for this purpose at a point about 20 feet from the crossing, carried it on a shovel to the place where he wanted it, deposited it, and returned for more. The engineer and a brakeman who sat in the fireman's seat saw the deceased and understood what he was doing, and when he approached the crossing the last time, and was 10 or 12 feet from it, did all that was possible to stop the [ reached the whistling post, a distance of train. Referring to the evidence on this 80 rods; and the evidence tended to show point, the court said: that nothing was done to stop the train un、 "There was no evidence in the case fairly til it was within 20 or 25 feet of the crossand reasonably tending to show that the de-ing, when the fireman "hollered" to the engifendant's servants, after they realized, or ought to have realized, La Mountain's peril failed to do all in their power to save him." The deceased was unincumbered in any way, and, so far as appeared, was in full possession of all his faculties, and a proper use of them would have saved him. The right to recover was denied. In none of these cases did the evidence tend to show that the last clear chance was with the defendant; that is, that the defendant, by the exercise of reasonable care and prudence, might have avoided injuring the plaintiff, or deceased, after it was too late for him to avoid being injured. There was no evidence in the instant case that the persons in charge of the train actually saw the plaintiff after the tractor stood at the log, but this was not necessary to a recovery. If sufficient time elapsed after the plaintiff entered the danger zone so that it can be fairly said that the trainmen in the exercise of the care and diligence of a careful and prudent person ought to have discovered and comprehended his peril in season to have avoided the accident, knowledge will be imputed to them. [4] While the evidence as to where the train was when the plaintiff stopped the tractor on the track was conflicting, under this motion, it must be considered in the light most favorable to the plaintiff. Rice et al. v. Bennington County Savings Bank, 93 Vt. 493, 108 Atl. 708. He testified that after he backed away from the log he made a stop of two or three seconds before he backed onto the track; that it was 40 seconds from the time he so stopped until the train struck the tractor. Assuming that it took 2 seconds to back from the place where he stopped after he started away from the log to the place where he stopped on the track, the tractor must have been on the track 35 seconds before it was hit by the train. The evidence tended to show the speed of the train to be 20 to 25 miles an hour; that, if moving at the former speed, it could have been stopped in going 200 feet, and, if moving at the latter speed, it could have been stopped in going 240 feet. If running at either speed, it could have been stopped in less than 7 seconds. Those in charge of the train therefore had 28 seconds in which to discover the plaintiff's peril and take steps to avoid injuring him before action for that purpose was necessary. neer, and the latter applied the brakes. Moreover, the train was approaching a public crossing where people had a right to pass and did pass frequently. This increased the risk of danger from collision and inand diligence required of the trainmen in creased correspondingly the degree of care the performance of their duty to look out for persons who might be in peril at this crossing. A railroad company in running its trains must exercise care according to the circumstances, and, where its track crosses a much-traveled street or highway, the company, as well as the public, is bound to exercise a degree of care commensurate with the danger. [5] The law, to be sure, did not require those in charge of the train to act on the assumption that the plaintiff was going to remain on the track until the train reached the crossing. For a time they had a right to assume that he would get off in season to avoid being injured. Guilmont's Adm'r v. Central Vermont Ry. Co., 78 Vt. 185, 62 Atl. 54. But how long they could rest on this assumption was for the jury to say in the circumstances of the case. La Mountain's Adm'x v. Rutland Railroad Co., pra. su. [6] It appeared that the plaintiff was standing on the floor of the tractor in front of the seat and back of the control levers, and that the rear of the tractor was practically over the east rail, that it was difficult to get off the tractor except at the rear, and that to get off at the rear it was necessary to pass around the seat, through a passageway about 2 feet wide. As the tractor then stood, to get off at the rear the plaintiff would have been obliged to pass in front of the approaching train. He had less than 7 seconds in which to act after the train reached the point where, in the exercise of due care, the defendant's servants could have stopped it and avoided the accident. It cannot be said as a matter of law that this was sufficient time, in the circumstances, in which to reach a place of safety. We think the circumstances disclosed by the evidence were such that a jury would be justified in finding that the defendant's servants, in the exercise of due care and prudence, could have avoided the collision after a time when the plaintiff was powerless to save himself. It follows that the evidence made a case for the jury on the question of last clear chance. It appeared that the engineer and fireman were at their respective windows in the cab The defendant saved some exceptions to of the locomotive, and that the fireman, at the charge, which, if sustained, would result least, from his position had an unobstructed in a retrial. It says, however, that it does (113 A.) plaintiff is entitled to recover for personal indictment against him is not competent eviinjuries; therefore these exceptions are not considered. Judgment affirmed. (95 Vt. 167) In re O'BRIEN. (No. 292.) dence for the attorney in disbarment proceedings, for the reason, among others, that the parties to the proceedings were not the same. 6. Attorney and client 46-Acquittal on criminal charge does not prevent disbarment for same act. In a case where the court would have discretion to hear disbarment proceedings before the trial of the attorney on an indictment for (Supreme Court of Vermont. Rutland. May the same acts, the acquittal of the attorney 3, 1921.) does not prevent his disbarment, since the parties, issues, and quantum of proof necessary 1. Attorney and client 42-Attempt to de-are different in the two proceedings. ceive court by false testimony is malpractice. 7. Attorney and client 46-Nolle prosequi An attorney who attempts to deceive the on criminal charge does not prevent disbarcourt, so as to obstruct the administration of ment for same acts. justice, by giving false testimony himself, or by presenting to the court testimony which he knows to be false, is guilty of malpractice, which renders him unworthy of the privilege which his license to practice law confers upon him. In a case where the acquittal of an attorney at a trial on an indictment would not prevent his disbarment for the same acts, the entry of a nolle prosequi by the prosecuting attorney in the criminal proceedings does not prevent the disbarment. 2. Attorney and client 54-Hearing of dis- 8. Attorney and client barment before trial on indictment held not abuse of discretion. 61-Disbarred at torney who offered no evidence cannot seek reinstatement on newly discovered evidence. An attorney who refused to participate or offer any evidence in proceedings for his disbarment is not entitled to seek reinstatement on the ground of newly discovered evidence. An order by the court for a hearing before commissioners of charges preferred against an attorney on proceedings for his disbarment, before his trial on the indictment charging the same acts as a crime, which was within the discretion of the court, was not an abuse of that discretion, where the charges against the Petition by Ernest H. O'Brien asking attorney were preferred by the highest prose-leave to file petition to be reinstated as cuting officer of the state, and involved at- an attorney at law and solicitor in chantempts to obstruct the due administration of cery. Leave to file petition denied. justice by perpetrating a fraud on the court. At the February term, 1919, of the Supreme Court, on charges preferred by the Attorney General of the state, supported by 3. Attorney and client 48-Denial of continuance because witnesses under indictment would claim privilege not shown to be erro-facts found and reported by commissioners neous. The denial, by commissioners to hear disbarment proceedings, of a continuance because witnesses for the attorney were under indictment and would claim their privilege of refusing to give testimony, is not shown to be erroneous, where the commissioners reserved their ruling upon the effect of the claim of privilege by the witnesses until such claim should be made, and the witnesses were not subpoenaed by the attorney to appear at the hearing before the commissioners. 4. Attorney and client ~~~~48-Requirement of proof attorney was unable to attend disbarment hearing held proper. appointed to hear evidence and make report of their findings in the premises, Ernest H. O'Brien, of Rutland, was removed from the office of attorney at law and from the office of solicitor in chancery. The case is reported in 93 Vt. 194, 107 Atl. 487. Referring to those proceedings, O'Brien now presents his petition and asks leave to file the same, praying to be reinstated as an attorney at law and as solicitor in chancery. In view of the grounds of the petition, it becomes necessary to any disposition which may be made of the matter to notice carefully and with more or less detail the charges preferred on which the disbarment proceedings were had, It was not error for the commissioners to hear disbarment charges to deny a continu-the course of the proceedings, and the facts ance because of the physical inability of the attorney to attend the hearing until proof of such inability be made by some showing beyond the mere statement of his counsel. found and reported by the commissioners. At the time the complaint in those proceedings was filed, there had been filed in the Rutland county court, and was there pending, an information against O'Brien, charging him with the crime of perjury, being, in part at least, the same perjury alleged in the Where an attorney was charged with hav-aforesaid complaint as committed by him for ing confederated with another to commit per- the purpose of deceiving and defrauding the jury as to the genuineness of a document, the court of chancery, presently more fully noacquittal of the confederate on trial of the ticed. 5. Attorney and client 53(1)—Acquittal of attorney's alleged confederate in criminal prosecution not evidence on disbarment proceedings. |