it cannot be said that his negligence was the sole cause of his injury. The claim that there was no evidence tending to support the charge of negligence as presented in any single count is sufficiently met by the views already expressed. See generally Lynch v. Central Vt. Ry. Co., 89 Vt. 363, 95 Atl. 683; White v. Central Vt. Ry. Co., 87 Vt. 330, 89 Atl. 618; Central Vt. Ry. Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; Carleton v. Fairbanks Co., 88 Vt. 537, 93 Atl. 462; Morrisette v. Canadian Pac. R. R. Co., 74 Vt. 232, 52 Atl. 520; McDuffee V. Boston & Maine Rd., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Rep. 1019. Judgment affirmed. (91 Vt. 343) COLLINS et al. v. CITY OF BARRE. (Supreme Court of Vermont. Washington. May 1, 1917.) 1. MUNICIPAL CORPORATIONS 292(1), 293(4), -STREETS-CHANGE OF GRADE-NOTICE. Under P. S. 3878 providing that the roadbed of a highway shall not be cut down or raised more than 3 feet without notice having been first given to the owners of the time and place of a hearing in respect thereto and section 3879, providing that on determination that a roadbed should be altered by lowering or raising the same more than three feet, such change may be ordered and the damages, if any, to the owners, be determined and awarded, street commissioners were without jurisdiction to act on the question of raising a roadbed more than 3 feet, where the petition presented to them asked merely for a resurvey and a relocation of a portion of the street, and the notice published and given to abutting landowners of a hearing on the petition did not show that any question pertaining to the raising of the roadbed was to be considered and no person interested in the property was present on the hearing of the petition or consented to the raising of the roadbed or waived any rights relating thereto. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 775.] 2. VENDOR AND PURCHASER STRUCTIVE NOTICE STREET. Appeal in Chancery, Washington County; E. L. Waterman, Chancellor. Suit by Kate L. Collins and others against the City of Barre. From a pro forma decree dismissing the bill for want of equity, plaintiffs appeal. Reversed and remanded. The bill in this case was, pro forma, held insufficient on demurrer, and dismissed for want of equity. The cause is here on plaintiffs' appeal. The facts stated below appear from the allegations in the bill. house and lot situated on Warren street in The premises in question, being a dwelling the city of Barre, were conveyed to the plaintiff Kate L. Collins on March 31, 1908, by George F. Lackey and Nettie E. Lackey, by their deed of that date, recorded in the land records of the city of Barre. The plaintiff O. R. Collins is the husband of Kate L. The plaintiff Capital Savings Bank & Trust Company holds a mortgage on the premises, given by Kate L. and her husband, on May 17, 1909, which is unpaid. At the time this mortgage was given the premises were worth $1,500 or $1,600. At the time of the aforementioned conveyances, the grade of Warren street (which was in front of and the only means of access to said premises) was about on a level with the bottom of the underpinning resting on the foundation supporting the dwelling house. Since those conveyances the city has raised the roadbed of Warren street opposite and in front of these premises, so that the street as now traveled and used is about on a level with the eaves of the dwelling house, or about 12 feet above the street as it was traveled and used at the time of the aforementioned conveyances. By reason of this change in the grade of the street, the premises have been rendered of little value, being worth less than $500. On the 18th day of July, 1903, when one Cora E Churchill and her husband, C. A. 229(8)—CON- Churchill, were the owners of the premises CHANGE OF GRADE OF in question, and residents of the city of The record of proceedings of street commis-Barre, a petition signed by certain landownsioners, wherein they changed the grade of a street by raising the roadbed more than 3 feet, was not constructive notice of such action to a subsequent purchaser, where the commissioners were without jurisdiction in the matter. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 488.] 3. MUNICIPAL CORPORATIONS CHANGE OF GRADE-RIGHT TO RELIEF-ADEQUATE REMEDY AT LAW. 404(1) Where the roadbed of a street is raised by the street commissioners without legal authority, it cannot be urged against a bill in equity for relief that there was an adequate remedy at law. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 989.] 4. EQUITY 219-LACHES-DEMURRER. ers on Warren street, and addressed to the board of street commissioners, city of Barre, was presented to the city council, requesting a resurvey and a relocation of the southeasterly end of Warren street for about 285 feet, representing that the public good and the convenience and necessity of individuals demanded that such resurvey and relocation should be made, and waiving all claims for damages which the petitioners might be, by law, entitled to receive. petition was referred by the city council to the board of street commissioners, with instructions to have said portions of Warren street resurveyed and relocated in accordance with the petition if the same could be done without expense to the city. On July This [Ed. Note.-For other cases, see Equity, Cent. | 24th the street commissioners issued a notice, Dig. §§ 496, 498-500.] stating that such a petition had been pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing any alteration or change in the grade of Warren street in front of the same and in front of the dwelling house thereon, and none of them ever attended any hearing upon the question of 'damages occasioned by reason of any such alteration or change of grade. The plaintiffs aver that the action of the city council and street commissioners, in so far as it pertained to an alteration or change of grade of Warren street in front of the dwelling house mentioned, was without legal authority or justification, and was of no legal sented to them, "asking that the easterly by the plaintiffs, upon the question of makend of Warren street for about 200 feet should be resurveyed and relocated," and further stating that the city council had, by vote, decided "that said portions of said street should be resurveyed and relocated if in the judgment of said commissioners after a public hearing it should appear that the public good and convenience and necessity demand that said resurvey and relocation should be made, and if said relocation can be made without expense to the said city." The notice then stated the time when, and the place where, the street commission-effect so far as those premises are concerned. ers would hear "all those interested in said resurvey and relocation of said portion of Warren street," etc. This notice was published in the Barre Daily Times, and a type written copy thereof was served on the city attorney and on Mrs. C. A. Churchill and Mrs. H. M. Dillingham personally, and on C. A. Churchill, James Baigries, and F. N. Braley, by leaving copy at residence. The record of the report of the proceedings upon the petition (set forth in the bill) states that the commissioners met at the time and place set forth in the notice, "and did hear all those who were present, and who were interested in the resurvey and relocation of said portion of said street," and viewed the No change was made in the grade of that street in front of the premises in question after the proceedings upon the petition in 1903, until after the plaintiff Kate L. Collins had become the owner of said premises; but since that time the roadbed of that street in front of the dwelling house on the plaintiffs' premises has been raised more than 3 feet by the city, there being a continuous depositing of earth and stone there, covering a period of 2 or 3 years, which had the effect of raising the roadbed at that point about 12 feet. All this was done by the city without any notice to, or permission of, the plaintiffs, and the latter have never been tendered any damages caused thereby. The plaintiffs' premises; and "thereafter adjudged that premises have been damaged by this alleged the public good and the convenience and ne- unlawful action on the part of the city to an cessity of individuals did demand that said amount exceeding $1,000, the house thereon street should be resurveyed and relocated ac- being rendered uninhabitable; and the prescording to plans which accompany the re-ent condition of Warren street in this respect port and which have been prepared by" the city engineer, bearing date of December 2, 1903, "now on file in the office of said en gineer." The report then proceeds as fol lows: "We have also established the grade of said portion of said street as shown on plans which accompany the report, and which bear date of December 3d and which were prepared by said city engineer." The report also states that the commissioners have awarded no one any damages, as no one claimed damage, and that in their "judgment all received benefits equal to any damage which they received by reason of said resurvey and relocation and grade established." This report was dated December 3, 1903, signed by the street commissioners, and received for record in the city clerk's office on the same day. Neither Cora E. Churchill nor her husband was present at the hearing had pursuant to the aforementioned notice, and they never had any notice from the city council, the street commissioners, or any other city official that any change in the grade of Warren street in front of their said premises was contemplated or for consideration. Neither the Churchills nor any other of the plaintiffs' predecessors in title were ever notified of any time when the city council or any other officials of the city would hear the constitutes a continuing injury to the plaintiffs, and an unwarranted and unlawful act by the city. The plaintiffs further aver that the action of the city in raising the roadbed in front of their premises in the way and manner described was an invasion of their constitutional rights, in that it deprived them of their property without due process of law. Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ. Frank J. Marshall, of Montpelier, for appellants. Edward H. Deavitt, of Montpelier, for appellant Capital Savings Bank & Trust Co. William Wishart, of Barre, for appellee. WATSON, J. [1] Section 3878 of the Public Statutes provides: "A selectman or road commissioner shall not alter a highway, by cutting down or raising the building standing upon the line of such highroadbed in front of a dwelling house or other way, more than three feet, without first giving notice to the owners thereof, of a time when the selectmen will examine the premises, hear them upon the question of making such alteration and damages by reason of such alteration; at which time, the selectmen shall attend and hear said owners, if they desire to be heard." By section 3879, if it shall be determined that the public good, or the necessity or convenience of individuals requires that such roadbed be altered by lowering or raising [3] It is further urged that the plaintiffs have an adequate remedy at law, and therefore this bill in equity will not lie. But the case of Wheeler v. St. Johnsbury, cited above, is full authority to the contrary. There, in a case sufficiently like the one at bar as to equity jurisdiction to make it controlling here, it was held that equity had jurisdiction on two grounds, namely, for want of an adequate remedy at law, and the prevention of a multiplicity of suits. [4] And, finally, it is said that the plaintiffs are guilty of laches even if they were ever entitled to damages. But this defense cannot be raised by demurrer. Drake v. Wild, 65 Vt. 611, 27 Atl. 427; Gleason v. Carpenter, 74 Vt. 399, 52 Atl. 966; Wilder's Ex'r v. Wilder, 82 Vt. 123, 72 Atl. 203. Pro forma decree reversed, bill adjudged sufficient, and cause remanded. be ordered, and the damages, if any, to the owners shall be determined and awarded. The interpretation of the law of these sections was before this court in Fairbanks v. Rockingham, 75 Vt. 221, 54 Atl. 186, and it was there held that an alteration in the roadbed in the sense of the statute begins when the lowering or raising of the roadbed exceeds 3 feet; that a change in this respect of not more than 3 feet is regarded by the statute as in the nature of ordinary repairs, and not as an alteration of the highway. So the case before us rests upon the allegations showing the raising of the roadbed in question to the extent of about 9 feet in excess of that considered as of ordinary repairs. Such an alteration was not within the scope of the petition to the street commissioners, asking for a resurvey and a relocation of that portion of Warren street, nor did the notice published and given to abutting landowners of a hearing on the petition (91 Vt. 485) show that any question pertaining to the raisHOWE v. CENTRAL VERMONT RY. CO. ing of the roadbed was involved or to be considered. The matter of grade is not mention-(Supreme Court of Vermont. Windham. May ed in the record of those proceedings until that part of the report of the street com- 1. RAILROADS missioners which shows their doings and P. S. 4478, provides that every railroad corconclusions reached. No one interested in the poration in the state shall cause all trees, shrubs, property here in question was present at the and bushes to be cut within the surveyed boundhearing had on the petition, nor consented aries of their lots for a distance of 80 rods in each direction from all public grade crossings. to raising the roadbed, nor waived any rights Section 4479 provides that on neglect so to do, relating thereto. On the question of making after 60 days notice in writing, the selectmen such alteration, as well as on the question of the town shall cause the same to be cut each year, and the railroad shall be liable for all of damages, the owner of the property in damages occasioned thereby. Held, that no acquestion was entitled to notice and an op- tion for personal injuries can be maintained on portunity to be heard. This was required by the basis of such failure to clear the right of the statute, and was essential to the jurisdic-way in the absence of the written notice by the tion of the street commissioners of the sub- [Ed. Note. For other cases, see Railroads, ject-matter of those questions. Without com- Cent. Dig. § 965.] pliance with the statute in this regard, the commissioners were without jurisdiction to act on any question of raising the roadbed more than 3 feet, and their actions in this respect were void so far as the owners of the property in question are concerned. La Farrier v. Hardy, 66 Vt. 200, 28 Atl. 1030; Lynch v. Rutland, 66 Vt. 570, 29 Atl. 1015; Barber v. Vinton, 82 Vt. 327, 73 Atl. 881; Wheeler v. St. Johnsbury, 87 Vt. 46, 87 Atl. 349. [2] It is urged that at the time of the purchase by Mrs. Collins of the premises in question she knew, or should have known, that the records of Warren street then on file in the city clerk's office provided for the grade that was subsequently established. No notice of this kind in fact is shown; and since the action of the street commissioners in establishing a grade of more than 3 feet raise of the roadbed was without jurisdiction of the subject-matter, as against the owners of the property in question, the record of the doings of the commissioners in this respect was not constructive notice to Mrs. Collins when she took the property by purchase. 24, 1917.) 314-CROSSING ACCIDENTS— CONDITION OF RIGHT OF WAY. selectmen. 2. RAILROADS 348(4)-CROSSING ACCIDENTS -SIGNALS. In an action for personal injuries incurred in a collision between a locomotive and the automobile in which plaintiff was riding at a railroad crossing, evidence held to sustain a finding that the locomotive whistle was blown at a distance of 80 rods from the crossing. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1141, 1142.] 3. RAILROADS 350(7) RAILROAD CROSS- [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1161.] 4. NEGLIGENCE 93(3) IMPUTED NEGLI GENCE. Where a child about 22 years old was injured in an automobile driven by her grandparents, in a collision on a railroad crossing, the contributory negligence of the grandparents road company was guilty of negligence. could not prevent a recovery if defendant rail [Ed. Note. For other cases, see Negligence, Cent. Dig. § 150.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. NEGLIGENCE 93(3) GENCE. IMPUTED NEGLI- | signal post, which was about 50 or 60 feet from the last rail, and kept it in low gear Where a child taken for a ride by her par- thereafter. While the car was in low gear, ents in an automobile was injured in a collision at a railroad crossing, recovery could not be denied on the ground that plaintiff was engaged in a common enterprise with the others in the car, and that their negligence was imputable to her. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 150.] Exceptions from Windham County Court; Willard W. Miles, Judge. Action by Marion Howe against the Central Vermont Railway Company. Verdict for plaintiff, and defendant excepts. Reversed and remanded. it proceeded at a speed of not more than 4 to 6 miles an hour, with no attempt to increase the speed before it was struck by the locomotive. When the car was almost over the crossing, it was struck by the west end of the breast beam of the locomotive six inches from the rear of the body of the car, throwing the occupants out, injuring the plaintiff and wrecking the car. The declaration states two grounds of negligence upon which the action is founded: (1) That the defendant did not give the required Argued before MUNSON, C. J., and WAT- | warning signal when its train was approachSON, HASELTON, POWERS, and TAY-ing the crossing in question either by ringLOR, JJ. Herbert G. Barber and F. E. Barber, both of Brattleboro, for plaintiff. J. W. Redmond, of Newport, and Charles F. Black, of St. Albans, for defendant. WATSON, J. In this action the plaintiff sues by her next friend to recover for injuries received by her on September 10, 1915, at the defendant's grade crossing known as "Parks Siding," in the town of Townshend, this state, by reason of the defendant's locomotive colliding with the automobile in which she was riding. The automobile came upon the crossing from the east, going towards the west. The plaintiff was then two years and seven months of age, and lived ing the bell or sounding the whistle; and (2) that defendant allowed trees, shrubs, and bushes to grow and remain within the boundaries of its right of way within a distance of 80 rods in each direction from said crossing, the plaintiff's view, as the automobile neared the crossing, being thereby obstructed. At the close of the evidence the defendant moved for a directed verdict on several grounds which may be condensed and adequately stated for the purposes of the case, as follows: (1) There is no evidence in the case tending to show any negligence on the part of the defendant that was the proximate cause of the injury; (2) on all the evidence, the proximate cause of the injury complained of was the negligence of the driver of the automobile, or of the father of the with her parents in the town of Newfane, plaintiff, or of the mother of the plaintiff, or about two miles from the home of her grand- of some or all of them; (3) on all the eviparents, Herbert G. Howe and his wife, Nora dence, the driver of the automobile and the L. Howe, who lived in the town of Brookline. father of the plaintiff were jointly or severOn the morning in question, pursuant to an ally guilty of contributory negligence, which arrangement previously made between the contributory negligence is imputable to the grandfather and the plaintiff's parents, the plaintiff went with her parents to the house plaintiff; (4) on all the evidence, the occuof her grandfather to go to the Londonderry pants of the automobile were engaged in a common enterprise, and therefore the confair in the latter's automobile. The party, tributory negligence of the driver is imputaconsisting of the grandfather, the grandmoth-ble to the plaintiff; and (5) there is no evier, their son, Glen Howe, the plaintiff, her father, and her mother, started in the auto-dence tending to show any actionable neglimobile at 7 o'clock and 20 minutes for Lon-gence on the part of the defendant because of donderry. The grandfather was the driver the growth of shrubbery or trees upon its of the car, and with him sat Glen. The grandmother was seated on the extreme right [1] The action, as to the second ground of of the rear seat, holding the plaintiff in her lap. The plaintiff's mother and her father sat negligence stated above, was treated by the at the left of the grandmother, in the order court and by counsel on both sides throughnamed. Seven miles from the place of start-out the trial below, as based upon section ing was the crossing in question, with which the plaintiff's grandfather and her father were well acquainted, and had often been over it in both directions in an automobile. They both knew the time the morning train from Londonderry was due at the crossing, and understood it was due to leave West Townshend, about 2 miles north of the crossing, at 7:45 a. m. The accident occurred a little before 8 o'clock. The driver threw the car into low gear about opposite the crossing right of way. To the overruling of the motion defendant excepted. 4478 of the Public Statutes, which reads: in this state shall cause all trees, shrubs and "A person or corporation operating a railroad bushes to be cut within the surveyed boundaries of their lands, for a distance of eighty rods in each direction from all public grade crossings." By section 4479: "If said person or corporation neglects or refuses to remove the trees, shrubs and bushes, as required by the preceding section, after sixty days' notice in writing, given by the selectmen of the town in which such trees, shrubs and bushes are located, and cause the same to be cut in the month of October each year thereafter, said person or corporation shall be liable for all damages occasioned thereby." was first enacted in 1849, and has hitherto remained in force without any change in words or substance material to be noticed here. Its construction came before this court as early as 1864, in an action on the case for damages to horses and harnesses on a public highway railroad crossing. It was there held, in effect, that the two sections should be construed together; that by the first section it is required that the bell shall be rung or the steam whistle blown at least 80 rods from the place of the crossing on the same grade, and that "the ringing or blowing shall be continued until the engine shall have passed such crossing"; that, though in that section the requirement is affirmative and unconditional, yet by the law of the second section, if any railroad cor The law of these two sections was enacted in sections 1 and 2 of No. 93, Acts of 1904, and related to the same subject-matter. It is a prerequisite to liability under it that notice be given as specified in section 4479. The evidence did not show, and it is not claimed, that any such notice was ever given to the defendant. Therefore the action can not be maintained on the basis of such statutory negligence. Although this is not determinative of the motion for a directed verdict, there being questions to be considered thereon in connection with the other alleged ground of defendant's negligence, yet it follows that the exceptions to the submission to the jury of the question of defendant's lia-poration shall unreasonably neglect or rebility for failure to keep the shrubbery cut within the limits of its roadway must be sustained, as must also the exception to the rendering of judgment against the defendant on the special finding of the jury that the shrub-ed to the penalty unless such neglect or rebery in said roadway was the proximate cause of the injury. [2] There was the negative testimony of several of plaintiff's witnesses to the effect that they did not hear any bell ring nor whistle blow before the accident; while the testimony of other witnesses was that they heard the whistle blow back some distance from the crossing in question, which, fairly construed, may be said to warrant a finding that the whistle was blown in the vicinity of 80 rods back from the crossing. There was no evidence that the bell was rung at that place or between there and the crossing. For the purposes of the case on the motion for a verdict, we consider the evidence as showing that the bell was not rung at all when the train was approaching the crossing, and that the whistle was blown 80 rods from the crossing, but not afterwards and before the accident. [3] It is said on the part of the defendant that thus blowing the whistle was a compliance with the provisions of section 4431 of the Public Statutes, requiring signals when a train is approaching a public highway crossing at grade; while the plaintiff contends that this is not so, for that to constitute a compliance with the statute by blowing the whistle the blowing must begin back at least SO rods from the place of the crossing and continue until the crossing has been passed. | The statute reads: "A bell * shall be placed on each locomotive engine, and be rung at the distance of at least eighty rods from the place where the railroad crosses a road or street at grade, and be kept ringing until it has crossed such road or street; or the steam whistle may be blown instead of ringing such bell." The next section (4432) provides that, if a person or corporation owning or operating a railroad unreasonably neglects or refuses to comply with the foregoing provisions, it shall be fined, etc. The law of these sections fuse to comply with such requisitions, they shall forfeit, for every such neglect or refusal, a sum not exceeding, etc.; that the fact that the corporation cannot be subject fusal be shown to have been unreasonable clearly implies that in the contemplation of the law there may be cases in which such neglect or refusal would be reasonable, and, if reasonable, the penalty would not be incurred; that the provision of the first section was designed to operate more stringently than the common law, "and while it was not designed to subject the corporation to civil liability, entirely regardless of the circumstances and occasion of the omission to ring the bell or blow the whistle in all cases of injury caused by such omission, still it was designed to require, as the general rule, that the bell should be rung or the whistle blown in all cases, and, in case of injury by reason of an omission so to do, to impose the burden on the corporation of showing that such omission, in the exercise of a sound judgment by the engineer, in view of the condition of things as they existed at the time, was reasonable and prudent; when therefore, in a case like the present, the plaintiff should show that the alleged injury was caused by such omission, it would not be necessary to his right of recovery that he should take the burden of showing affirmatively that such omission was unreasonable and imprudent, but it would rest upon the defendant, as a matter of defense, to show that it was reasonable and prudent;" and that "the liability of the corporation should be left to stand upon this, viz., whether, in the judgment of the jury, upon all the evidence, the omission in the given case, in view of the actual condition of things, was reasonable and prudent." Wakefield v. Conn. & Pass. R. R. R. Co., 37 Vt. 330, 86 Am. Dec. 711. The holdings in that case have stood as the law of the subject for more than half a century without criticism; and upon a careful examination of the statute, in view of the arguments of counsel in the present case, we see no rea |