(107 A.) ing Randolph until they reached the crossing, [ law, unless registered as provided in the and that they had good opportunity both to preceding sections. By G. L. 4718, a persee and hear. The night was rainy and son who violates a provision of the chapter misty, and the automobile top and wind of the statutes relating to the regulation of shield were up. About 50 feet east of the automobiles and motor vehicles, for which track was a covered bridge over the river, other penalty is not provided, is subjected to which was lighted by electric lights. The a fine of not more than $100. It is provided bridge was undergoing repairs, and there elsewhere in this chapter that, upon the sale were also lanterns on the end of the bridge of an automobile, its registration shall extowards the railroad that were visible to the pire, and that the purchaser shall take out plaintiff as he descended the hill towards the new registration (G. L. 4677); and that the crossing. Plaintiff was well acquainted with fee for reregistering the automobile shall be the locality and the condition of the road. one dollar, provided it is done within five As plaintiff started down the hill, he threw days after the purchaser comes into possesout the clutch and applied the brakes, which sion of the automobile (G. L. 4674). worked properly, and showed the speed of the car to 10 miles an hour or less. He looked and listened and saw and heard nothing. Part way down the hill he relaxed his brake somewhat to increase his speed a little, but kept his foot on the brake. When a short distance from the track, he discovered the train and put on the brakes, which held; but the car, with its wheels locked, slid forward into the train, owing to the steepness of the grade and the wet and slippery condition of the road. The damage to the car was occasioned by the train starting just as the car struck it. Plaintiff saw no light at the crossing or on the train, and first discovered the presence of the train when he reached a point where the cars obstructed the light | automobile is regarded as "outside the pale from the bridge, a distance of 15 to 20 feet from the crossing. The road had been recently oiled and was greasy. Such was the tendency of the evidence, regarded in the light most favorable to the plaintiff. The defendant relies only on its exception to the denial of its motion for a directed verdict. The several grounds of the motion assigned in the court below may be summarized as follows: (1) The evidence shows that the plaintiff was unlawfully traveling the highway at the time of the accident, and so was a trespasser, and that the defendant was not guilty of any shortage of duty owed to the plaintiff. (2) There is no evidence in the case tending to show any negligence on the part of the defendant. (3) On the evidence plaintiff was guilty of contributory negligence. In overuling the motion the court expressed grave doubt as to whether it should not be granted, but deemed it advisable to take that course that the case might be finally determined in this court. [1] Concerning the first ground of the motion, it was conceded that the plaintiff bought the automobile in question a month or six weeks before the accident; that it had been registered by the former owner; but that the plaintiff had not had it registered in his name as required by law. G. L. 4716, provides that an automobile or motor vehicle shall not be operated upon a public highway, or a private way laid out under authority of The defendant's claim is that the plaintiff was unlawfully traveling on the highway, had no right to be there, as he was violating the law of the state; and therefore it was under no duty to take precaution for his safety while so using the highway approaching the crossing. The defendant relies upon an Alabama case and several Massachusetts cases, that fully sustain its contention. It is there held, under statutes similar to ours prohibiting the operation of unregistered automobiles on the highways, that the violation of this prohibitive statute makes a plaintiff a trespasser and not entitled to the privileges and protection which the law accords to a traveler on the highway. The unregistered of travelers" on the highway and as having no rights there except to be protected from reckless or willful injury. This provision of our statute regulating automobiles is now for the first time brought in question here. The Massachusetts court had occasion to construe the statute in Holden v. McGilliccudy, 215 Mass. 563, 102 N. E. 923, which was an action for injury to plaintiff's automobile from a collision at Guilford, Vt. In the absence of evidence of the "common law" of this state on the subject, the court applied the Massachusetts rule and held that the plaintiff was a trespasser upon the highway, and that the defendant had violated no duty owed to him, though the jury had found, by special verdict, that the defendant was not in the exercise of ordinary care at the time of the accident. [2] The statute regulating automobiles and motor vehicles was enacted in 1904 (No. 86, Acts of 1904), and appears to have been taken bodily from the Massachusetts statute of the preceding year. The provision of the latter statute similar to the one now under consideration first came under consideration in 1908 in Doherty v. Town of Ayer, 197 Mass. 241, 83 N. E. 677, 14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355. The construction given by the Massachusetts courts furnishes no guide to the legislative intention in this state, since their decisions were subsequent to the adoption of the statute here; but a brief review of 1146. In Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701, the court reaffirms its position as to an unregistered automobile, but holds that an unlicensed operator is not a trespasser and so precluded from recovery, unless the failure to have a license is shown to be a contributing cause of the injury sued for. These decisions place the operator of an unregistered automobile so far outside the protection of the law in Massachusetts that he is permitted to recover only when the defendant's conduct is in the nature of a willful, intentional injury; or, in other words, when it amounts to a criminal or quasi criminal act. Dean v. Boston Elev. Ry. Co., 217 Mass. 495, 105 N. E. 616. the Massachusetts cases may prove helpful as I rectly contributes to the injury. The operashowing where the rule adopted there leads to. tor of an unregistered automobile is held liaIt was said in Doherty v. Town of Ayer, su- ble as a defendant for all direct injury repra, that since the plaintiff was upon the road sulting from its operation upon the highway, only as one riding in and operating an auto- though such injury was not the result of an mobile, if it was unregistered and if he was act of negligence. Koonovsky v. Quellette, unlicensed, he had no relation to the high- | 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, way, and he was in no sense a traveler, except as a violator of the law in reference to the use that may be made of the way. It was further said, in regard to the right of recovery, that a violation of the statute in this particular so affected his relation to the town in regard to the way and the only use he was making of it, as to leave him without remedy for an injury caused by a defect therein. In Dudley v. Northhampton St. Ry. Co., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561, while recognizing the general principle that for an unlawful act to preclude recovery it must have directly contributed to the injury, the court held that the Legislature intended to outlaw unregistered automobiles and to give them, as to persons lawfully using the highways, no other right than that of being exempt from wanton or willful injury; that the plaintiff was a mere trespasser, not only as to the owner of the soil, but also against the rights of all other persons who were lawfully using the highway; and that the defendant owed him no duty except to abstain from injuring him by wantonness or gross negligence. The court reached this conclusion because of the "peculiar provisions" of the statute, referring to the prohibition of the operation of an unregistered automobile upon the highway. Turning to the decisions of other states, we find a general dissent from the rule adopted in Massachusetts. They place violations of statutes requiring the registration of automobiles in the same category as other criminal statutes, and hold that they do not preclude a recovery unless there is a proximate, causal connection between the violation of the statute and the injury complained of. We have not gone to the trouble to compare their statutes with that of Massachusetts, as we regard any possible dissimilarity of little consequence in view of the construction we give to our own. We cannot conceive that the LegislaAs the logical result of this conclusion, it ture intended to place the operator or oc was held in Feeley v. City of Melrose, 205 cupant of an unregistered automobile outside Mass. 329, 91 N. E. 306, 27 L. R. A. (N. S.) the protection of the law, when injured by 1156, 127 Am. St. Rep. 445, that there could the unlawful act of another, or to take away be no recovery for injuries to passengers in his civil rights merely because he is commitan unregistered automobile, though the pas-ting a misdemeanor, when his illegal act in no sengers did not know that it was not regis-way contributes to the accident. To be sure, tered, as they were not travelers upon the in form the statute prohibits the operation highway but trespassers. Following this decision, the Legislature enacted that the fact that the automobile was not registered should not be a defense unless the plaintiff knew or had reasonable cause to know that the statute was being violated. Roll v. Converse, 227 Mass. 162, 116 N. E. 507. In Chase v. New York Cen. & H. R. R., 208 Mass. 137, 94 N. E. 377, the court calls attention to the distinction between unlawful conduct which is a cause of the injury and that which is a mere condition of it; but held that the operation of an unregistered automobile was unlawful in every aspect of it, that everything in the conduct of the operator that enters into the propulsion of the vehicle is under the ban of the law, that the machine is at all times an outlaw, and that the conduct of the operator of such an automobile is of an unregistered automobile upon a public highway; but its real purpose is to penalize the operation of such an automobile. The distinction between the status of a person operating an unregistered automobile and one operating an automobile without a license seems to us to be a distinction without any real difference. The statute requiring a license provides that a person shall not operate an automobile or motor vehicle upon a public highway unless licensed so to do as provided by law. G. L. 4693. Both statutes are prohibitive in form and the same person is the actor in each case. How can it be said that he is a trespasser in one case and not in the other? We held in Dervin v. Frenier et al., 91 Vt. 398, 100 Atl. 760, that the operation of an automobile without the required license was not negligence per se, nor (107 A.) tion was not shown between the violation of [not injured thereby. Nor, in the circumstancthe statute and the injury sued for. There, es, was the length of time material in any the illegality of the defendant's act was view of the matter. considered a mere condition and not a cause [4] In order to charge the defendant with of the plaintiff's injury. It would follow logi- | negligence, it must be found from some subcally that an unlicensed operator of an au- stantial evidence that its servants, in the tomobile would not be precluded from recov- exercise of ordinary care, should have ering damages for an injury to himself or his known that, on account of the darkness, the property merely because he had no license. cars upon the crossing were such an obSuch is the holding in Massachusetts (Hol-struction that a person traveling upon the land v. City of Boston, 213 Mass. 560, 100 N. highway approaching the crossing from the E. 1009), and we are not aware of any deci-west, at a reasonable rate of speed, in an ausion elsewhere to the contrary. tomobile properly equipped with lights and Construing the statute under consideration carefully operated, would be liable to come as we do, the fact that plaintiff's automobile in collision with the train. Trask v. Boston was not registered as the law required would & Maine R. R., 219 Mass. 410, 106 N. E. 1022; not make him a trespasser upon the highway Gage v. Boston & Maine R. R., 77 N. H. 289, nor affect his relation, at the time, to the 90 Atl. 855, L. R. A. 1915A, 363. In order to defendant. We have no occasion to consider sustain the court's ruling and charge the dehow it would be if the plaintiff were suing a fendant with the negligence claimed it must town for damages due to a defect in the be held that the jury would be justified highway. Defendant relies upon Johnson v. in finding that men of ordinary prudence Irasburgh, 47 Vt. 28, 19 Am. Rep. 111, and and foresight in charge of the train at the Holcomb v. Danby, 51 Vt. 428, where the time would have anticipated that such an effect of a statute then in force forbidding accident might happen in these circumstanccertain travel upon the highway on Sunday es. We think that reasonable men could was considered. But those cases are not in come to only one conclusion. Defendant's point with the case at bar. They went upon servants would be amply justified in acting the ground that towns were not bound to upon the belief that travelers in automobiles maintain their highways for an unlawful use. | properly lighted and driving at reasonable See Hoadley v. International Paper Co., 72 speed would observe the cars upon the crossVt. 79, 47 Atl. 169. It was of no conse- ing in time to avoid a collision. To borrow quence to the defendant that the plaintiff's an illustration used in Gage v. Boston & automobile was not registered. Though his Maine R. R., supra: conduct was unlawful, it was a remote illegal act, or, in other words, merely a condition and not a proximate cause of the accident. The accident would have happened if the law in this respect had been fully ob served. "Suppose, instead of the place being the intersection of a highway and the railroad, it had been the crossing of two highways, and the plaintiffs had run into the side of a load of logs which were being transported over the crossing; the driver of the logging team would have the same duty to exercise care for the benefit of the plaintiffs that the trainmen had, and the care he would be bound to exercise would be commensurate with the apparent danger to travelers on the other highway caused by his occupation of the crossing with a heavily loaded team. If the driver of the approaching automobile could see the obstruction in time to avoid colliding with it, reasonable men could not find that it was the duty of the driver of the team to have a lighted lantern on the side of his load toward the automobile, as a warning that the crossing was occupied." [3] Holding, as we do, that the defendant's duty to the plaintiff was that owed to a traveler upon the highway, we pass to the inquiry whether there was evidence for the jury on the question of defendant's negli gence. Plaintiff's claim at the trial was that the defendant was negligent in failing to station a man with a lantern at the crossing to give warning that it was obstructed by the train. As to the controversy concerning the length of time that the crossing had been obstructed, it is enough to say that it is wholly immaterial whether the train had [5] If the circumstances attending the been standing there more than five minutes, accident were as plaintiff claimed, it is apor whether it had merely paused for a few parent that the automobile was not stopped seconds. Concededly it was moving, or on before it struck the train because of the the point of moving, at the time the plaintiff greasy condition of the road. But the deran into it. If the defendant had occupied fendant was not responsible for this condition, the crossing more than five minutes in viola- and there was no evidence that the trainmen lation of the statute (G. L. 5177), it was not, knew or ought to have known of its existence. in the circumstances, evidence of negligence, Thus, an unusual condition, unknown to the for it was only a condition and not the defendant's servants, intervened that changproximate cause of the accident. Assuming ed the plaintiff's situation from one of safethat the train had occupied the crossing for ty to that of danger. There was nothing in an unlawful length of time, plaintiff was the evidence to show that the trainmen did Argued before WATSON, C. J., and POW. ERS, TAYLOR, and MILES, JJ., and FISH, Superior Judge. Amey & Cameron, of Island Pond, and Porter, Witters & Harvey, of St. Johnsbury, for plaintiff. not manage the train with reasonable care | Company. Plea of the general issue. Verdict and prudence in view of all the circumstances and judgment for plaintiff, and defendant they knew or ought to have known. The ac- brings exceptions. Reversed and rendered. cident happened through no fault of the defendant, and the court should have sustained its motion on the ground that there was no evidence for the jury tending to show actionable negligence. Any such duty as the plaintiff claims was, to say the least, conjectural and visionary; but a verdict based upon conjecture cannot stand. As in other cases, something more than a mere scintilla of evidence is required to sustain the burden of proof in an action for negligence. Gage v. Boston & Maine R. R. supra; Fadden v. McKinney, 87 Vt. 316, 322, 89 Atl. 351. It is unnecessary to consider the questions presented under the third ground of defendant's motion, as the exception is otherwise sustained. John W. Redmond, of Newport, for defendant. MILES, J. The main question to be considered here is whether the defendant furnished the plaintiff, its servant, with a reasonably safe instrumentality, called a jack, with which to perform his duties. The jack was used by the plaintiff in lining up the de Judgment reversed, and judgment for the fendant's railroad tracks, and consisted of defendant to recover its costs. (93 Vt. 282) RIGGIE v. GRAND TRUNK RY. CO. (No. 142.) (Supreme Court of Vermont. 1919.) an upright rack or standard, with cogs or teeth on one side and a projection at right angles to the standard on the other side. To this standard, on the side having the teeth or cogs, an arrangement was attached, to which one end of a socket, several inches in length, was fastened in a manner allowing the other end to be moved up and down in Essex. May 8, line with the standard. To this socket was attached a dog so arranged that it could be inserted between the cogs or teeth of the standard, and when so inserted, by moving the end of the socket, furthest from the standard, downward, the standard was raised with whatever object was on the projection of the standard at its base. Whenever it was desired to raise and move an object at the same time the jack was inclined in the direction in which the object was to be moved. A lever several feet in length was inserted in the socket. In operating the jack the lev54-PRESUMPTION ON PRE- er was raised, the dog inserted between the as 1. EVIDENCE 188-"REAL EVIDENCE." 2. TRIAL 139(1)-SUBMISSION TO JURY. teeth or cogs of the standard, and the operator then threw the weight of his body upon the lever, thereby pressing it down, and, if the dog was properly inserted between the cogs or teeth of the standard, it would be raised with the object upon it. To successfully and safely operate the jack it was necessary for the operator to make this connection between the dog and the standard, and to see that such connection was made before pressing the lever downward. The negligence alleged by the plaintiff in his complaint is that the jack was "an improper, inefficient, and unsuitable instrument with which to perform the said work" required of the plaintiff. His claim on the trial was that the jack was improper, inefficient, and unsuitable, not because of its construction, but because its dog and the cogs on the standard were so worn that it was not safe to be used, and in consequence thereof the dog slipped, precipitating him (107 A.) There was no evidence in the case tending to show that the jack was an improper, inefficient, and unsuitable instrument with which to perform the services required of the plaintiff, unless the testimony of the plaintiff and one of his witnesses that the dog and the cogs on the standard were so worn as to be unsafe was evidence tending to prove one or more of those facts. The plaintiff claimed on the trial below that it had such tendency, while the defendant claimed otherwise; but the same was received without objection or exception. Whether it had such tendency is not necessary to determine, in view of the treatment of questions hereinafter made, and we take no further time in considering that matter. upon one of the rails, inflicting the injury | 991, par. 176; Jones, Com. on Ev. by Horwhich he received. witz, vol. 3, par. 393. Such evidence is addressed to the senses of the tribunal for inspection (Jones, Com. on Ev. by Horwitz, vol. 1, par. Sa), and is sometimes referred to as physical facts, though the more generally accepted classification is that of real evidence; but, however classified, it means a fact the existence of which is perceptible to the senses. Bouvier's Law Dictionary, vol. 3, 2586; Knock v. Tonopah, 38 Nev. 143, 145 Pac. 939, L. R. A. 1915F, 3. The highest proof of which any fact is susceptible is that which presents itself to the senses of the court or jury, 10 R. C. L. 991, and see 17 Cyc. 290. So sensible is the law of the transcendent value of this class of evidence that in some cases the production of certain species of real evidence is peremptorily exacted to The plaintiff was a section man working the exclusion of all substitutes. Thus a on the line of defendant's railroad, and at the coroner's inquest to ascertain the cause of time of the accident was engaged with two the death of a person who died suddenly other section men in lining the track in must be held upon view of the body. Best Island Pond railroad yard. In the perform- on the Law of Ev. vol. 1, *274; Rapalje & ance of that duty the plaintiff was using the Lawrence's Law Dic. vol. 2, 1067; 1 Bl. jack in question, which was produced on the Com. *348; 4 Bl. Com. *274. Such evidence trial of the case as a piece of evidence tend- speaks for itself conclusively, where the ing to show that it was not "an improper, in- evidence thus produced is a mere matter efficient, and unsuitable instrument," with of observation, requiring no explanation which the plaintiff was required to perform or scientific knowledge to understand it. 'his duties. The evidence was undisputed No amount of personal testimony that a perthat the jack was a standard jack in common son was alive could overcome the real testiuse by railroads generally, and the ques- mony of the dead body produced before the tion raised here, under the plaintiff's claim, trier. is whether it was out of repair in the respect claimed by the plaintiff, and whether there was any evidence tending to show that fact. [1] The evidence of the plaintiff fairly tended to show that at the time of the accident he was engaged in moving a rail on the line of defendant's road. He had placed the projection attached to the standard under the rail to be moved, and had inclined the jack in the direction in which it was to be moved at an angle of about 45 degrees, when, throwing the weight of his body upon the lever, it gave way, resulting in the accident and injury of which the plaintiff complains. With the jack inclined as it was, the iron dog would have a tendency to fall of its own weight between the cogs or teeth of the standard. If the dog had been placed carefully, as the plaintiff was instructed to do by his foreman, only a few minutes before the accident, the possibility of the dog's slipping, even if the dog and cogs were worn to the extent claimed by the plaintiff, is highly improbable; but in the condition in which we find the jack to be upon inspection, it was impossible for the dog to slip if so placed. The jack was a piece of real evidence, and of all proof was the most satisfactory and convincing. Of such evidence it can be said: "Cum adsunt testimonia rerum, quid opus est verbis?" Best on Ev. vol. 1, *277; 10 R. C. L [2] When, as here, an object shows conclusively that it could not have operated as a witness testifies, the question should not be submitted to the jury, for the simple reason that in such circumstances the minds of reasonable men could not draw conflicting inferences. Such holding is not in conflict with State v. Manning, 75 Vt. 185, 54 Atl. 181. In that case there was no such evidence as real evidence, and the court in its charge was not referring to that class, and the papers in that case show that the reference by the court to real evidence was called forth by remarks of counsel for the state, respecting certain evidence, that such evidence was real evidence, and was also called forth upon the request of respondent's counsel for instruction to the jury, with which the court complied, and told the jury, as requested, that there was no such classification as real and unreal evidence, referring to the evidence in that case, and using the language of counsel who had characterized some of the evidence in the case as such. The Supreme Court properly held that the instruction was without error. The plaintiff produced only one witness, besides himself, who testified that the jack was out of repair in the respect claimed. That witness testified that, if the dog was placed in the cogs, it would not slip, and that that was true of any of that kind even |