Andrews v. N.Y. & N. E. R. Co.

• Citation: 60 Conn. 293,22 A. 566
• Court: Supreme Court of Connecticut
• Decision Date: 20 March 1891
• Parties: ANDREWS v. NEW YORK & N. E. R. CO. ANDREWS et ux. v. SAME. SMITH v. SAME.

22 A. 566

60 Conn. 293

ANDREWS

v. NEW YORK & N. E. R. CO.

ANDREWS et ux.

v. SAME.

SMITH

v. SAME.

Supreme Court of Errors of Connecticut.

March 20, 1891.

Appeal from superior court, Fairfield county; Fenn, Judge.

Three actions for personal injuries against the New York & New England Railroad Company by Frank A. Andrews, Frank A. Andrews and wife, and Edward W. Smith, respectively. Judgment in each for defendant. Plaintiffs appeal. Affirmed.

G. Stoddard and W. S. Haviland, for appellants.

E. D. Robbins, for appellee.

ANDREWS, C. J. These were three cases tried together, and all depending on the same facts. There was a hearing in damages after a demurrer overruled, and a judgment in each case for nominal damages only. The injury of which the plaintiffs complained happened at a grade crossing of the defendant's track in the town of Plymouth known as "Tolles' Crossing." That crossing is in a thinly settled locality. There are two houses within half a mile, at one of which Mrs. Andrews was living, with whom her aunt, Mrs. Smith, who lived in Bridgeport, was then visiting. There were in all four houses within a mile. Ordinarily from two to fourteen teams go over this crossing in a day. At the point of the crossing the general direction of the railroad is east and west; of the highway, north and south. The railroad track curves slightly, the inner side to the south. The crossing is dangerous to persons on the high way going north when a train is going east. West of the crossing the view of the railroad from the highway and of the highway from the railroad is obstructed by rocks and embankments. At the time of the injury the obstruction was somewhat increased by vegetation—weeds, bushes, and trees—growing within the right of way of the railroad. Such vegetation, however, caused very slight obstruction to sight, and none at all to sound. The whistling post for trains approaching the crossing from the west is 1,436 feet west of the crossing measured by the curve of the track, but it is nearer measured in a straight line, but how much nearer is not found. There is another grade crossing a little east of Tolles' crossing. The distance did not appear. The finding made by the judge of the superior court closes as follows: "On the 20th day of August, 1887, at about one o'clock in the afternoon, Mary E. Andrews, one of the plaintiffs, and Sarah J. Smith, the intestate of the plaintiff Edward W. Smith, administrator, were driving in a buggy on the highway and approaching Tolles' crossing from the south. Mrs. Andrews was sitting on the right-hand side of the buggy, holding the reins, and Mrs. Smith on the other side of the same seat. At this time the weekly pay-train on the defendant's railroad, consisting of an engine and one car, which was running as the second division of a regular passenger accommodation train, ten minutes behind the first section, was approaching the crossing from the west. Upon the crossing the engine upon this train collided with the buggy, throwing out both occupants, instantly killing Mrs. Smith, and very seriously injuring Mrs. Andrews. The train approached the crossing at the rate of about twenty-five miles an hour. As the engineer passed the whistling post he commenced blowing the usual crossing whistle, consisting of two long blasts, followed by two short blasts. At the same time the fireman commenced ringing the bell, and continued ringing it until the engine had passed the crossing. No other signal was given. The whistle and bell, if listened for, could have been heard without difficulty by persons approaching the crossing from the south on the highway. Mrs. Andrews and Mrs. Smith possessed ordinary powers of sight and hearing. The engineer was on the side of the engine from which the ladies were approaching the crossing. He was looking ahead along the track. When he first caught sight of the horse the engine was about 90 feet west of the crossing, and the horse's head and neck within 10 feet of the track. He supposed the team was coming to a stop, but almost immediately he saw the team moving forward, urged, as it seemed to him, by the action of the occupants of the carriage. He did everything possible to avert the accident by stopping the train, but was so near the crossing that he was unable to stop the engine in time to prevent it. It did stop at a point 210 feet east of the crossing. He did not again sound the whistle of his engine. The horse which the ladies were driving was gentle, not afraid of trains, and might have been stopped in time to prevent the accident if the ladies had kept watch along the track after it became possible for them to seethe engine. It is impossible forme to see how these facts are legally sufficient to justify any finding of negligence on the part of the defendant, or any violation of duty on its part. I therefore find that the defendant was not guilty of negligence; and as the conclusion reached, that the plaintiffs are entitled to nominal damages only, is based upon such want of negligence on the part of the defendant, I also omit to find contributory negligence on the part of Mrs. Andrews or Mrs. Smith, although clearly of opinion that a greater degree of vigilance on their part would have averted the accident. "

What negligence is in the meaning of the law, and in what cases a finding of negligence or of no negligence by a trial court can be revised by this court, and in what cases such a finding cannot be revised, has been so recently and so fully...