34 A. 491 (Conn. 1895), Pomponio v. New York, N.H. & H. R. Co.

Citation:34 A. 491, 66 Conn. 528
Opinion Judge:TORRANCE, J.
Party Name:POMPONIO v. NEW YORK, N.H. & H. R. CO.
Attorney:Stephen W. Kellogg and John P. Kellogg, for appellant. Charles G. Root, for appellee.
Case Date:July 19, 1895
Court:Supreme Court of Connecticut
 
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Page 491

34 A. 491 (Conn. 1895)

66 Conn. 528

POMPONIO

v.

NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

July 19, 1895

Appeal from superior court, New Haven county; Prentice, Judge.

Action by Nicolangelo Pomponio, administrator of the estate of Germaio Pomponio, against the New York, New Haven & Hartford Railroad Company, to recover for the death of plaintiff's intestate, caused by defendant's negligence. Tried to the court without a jury. From a judgment for plaintiff, defendant appeals. Affirmed.

Page 492

Stephen W. Kellogg and John P. Kellogg, for appellant.

Charles G. Root, for appellee.

TORRANCE, J.

This is an action brought to recover damages for injuries claimed to have been inflicted by the defendant upon the plaintiff's intestate, causing his death. The court below, upon the facts found, rendered judgment for the plaintiff, and the defendant appealed.

The following is the substance of the finding: The intestate, Germaio Pomponio, was, when injured, working for Holmes, Booth & Hayden, a corporation, in Waterbury. The shops of said corporation are located upon both sides of the defendant's railroad, and extend for a considerable distance parallel with it. Germaio was employed in that portion of the works lying easterly of the tracks, and on the 30th of May, 1892, a few minutes before 1 o'clock in the afternoon, he was returning to his work, and in doing so was passing over the tracks of the defendant's railroad, at a crossing leading from one of the streets in Waterbury to one of the two regular entrances to the easterly portion of the works of his employer. On both sides of this crossing was a wooden gate, and a house for a gate tender, belonging to and maintained by Holmes, Booth & Hayden. This crossing was regularly prepared for the purpose of access to said works, and was regularly used by three or four hundred of the employés in going to and from their work, as well as by teams and others having business with said corporation. It was the rule of said corporation that these employés should go through the gate at the easterly terminus of this crossing, in going to and returning from their work. None others than said employés, and those having business with the corporation, were permitted to enter at said entrance without a pass obtained from the office. This crossing has been thus maintained and used for over 30 years, and said use has always been open, notorious, and well known to all the world and to the defendant. During all this period the defendant has kept this crossing planked, and in condition for travel to said shops; and the planking for such purpose has generally been furnished by the defendant, but at times by said corporation. The layout of defendant's road, in 1848, antedated by a few years the erection of these shops, and the establishment of this crossing. It was well known to the defendant that at a few minutes before the morning starting, at the noon closing, the 1 p. m. starting, and the evening closing hours, the employés of said works passed in or out in large numbers, over this crossing, while during the other hours of the day it was comparatively little used. South of the crossing were two side tracks, used principally for the storage of cars for the shops. Thirty-four feet north of the crossing was the south end of an iron truss bridge of the defendant over the Naugatuck river. It was 105 1/2 feet long. Its main trusses were 24 inches wide. Its overhead supports were of iron of the various sizes usual in such a bridge, and it was not otherwise inclosed. The defendant was accustomed to switch over this crossing from its freight yard north of the bridge, in order to place its cars on the side tracks south of the crossing. In switching cars upon the more northerly of the two sidings, flying switches were customarily made. This switching could only be done during the intervals between the passing of regular trains, and one of these intervals was between 11:15 a. m. and 1:10 p. m. At the time Germaio was injured the defendant was making a flying switch over this crossing, in order to put a box car from the freight yard onto one of the two side tracks south of the crossing. Said car, having been got under headway, was, near the north end of the bridge, cut off from the engine, which then sped on, at about 12 or 15 miles an hour, until it passed the crossing, and the switch about 150 feet south of the crossing. Upon the engine were the engineer and fireman in the cab, the yard conductor on the forward footboard, and two brakemen on the rear footboard of the tender. Upon the box car, which followed some distance behind, and which was upon the bridge when the engine passed the crossing, was a single brakeman, on top of the car at

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the rear, where the brake was. As the engine approached the crossing the whistle was blown and the bell rung, and Germaio and Loughlin, a fellow workman, observed its approach, and halted for it to pass at a distance of between 6 and 15 feet from the tracks. After it had passed, Loughlin looked up and down the track. He did not see the car coming, being prevented from doing so either by the bridge, or by escaping steam, smoke, or flying dust, or both combined, and proceeded on his way. Germaio advanced at the same time. As they were upon the planking between the tracks, the silently advancing car, going at the rate of from six to eight miles an hour, struck both Loughlin and Germaio, causing the latter the injuries from which he died a few days later. It did not appear in evidence that any one observed, or was in a position to observe, Germaio, to see whether or not he looked up the track before starting to cross, after the engine passed, and there was no direct evidence upon this point. As the engine passed the deceased, none of the men upon it gave any warning of the approaching car, or did anything to attract his attention to it. When the brakeman upon the box car saw that an accident was imminent, he shouted, but was not heard by the crossers, as the circumstances rendered it little probable that he would be, or that, if heard, the intended warning would be of any avail. He also began to apply the brake, but with no effect in diminishing the speed of the car until the accident occurred. When Germaio started across the tracks, after the engine passed him, the box car was somewhere on the bridge, and it was more or less concealed from his view by the bridge. From any point in the line of said crossing, between defendant's west rail and the gate house, the view to the northward was unobstructed, save by the bridge; and standing in said line, within a distance of five feet from said rail, one had a clear view through the bridge. Between six and eight or nine feet from said rail the trusses and supports of the bridge seriously interfered with the view of objects on the bridge, so that a box car upon it " would be largely obscured from sight." At no point, however, would such a car be wholly hidden from sight. The finding concludes thus: " I find from the evidence as follows: (a) That the deceased was upon the crossing at the time of the accident by the implied invitation of the defendant. (b) That the defendant failed to exercise...

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