Borglum v. N.Y., N. H. & H. R. Co.

• Court: Connecticut Supreme Court
• Writing for the Court: BEACH, J.
• Citation: Borglum v. N.Y., N. H. & H. R. Co., 96 A. 174, 90 Conn. 52 (Conn. 1915)
• Decision Date: 17 December 1915
• Parties: BORGLUM v. NEW YORK, N. H. & H. R. CO.

96 A. 174

90 Conn. 52

BORGLUM

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

Supreme Court of Errors of Connecticut.

Dec. 17, 1915.

Appeal from Superior Court, Fairfield County; William H. Williams, Judge.

Actions by Solon H. Borglum, administrator, against the New York, New Haven & Hartford Railroad Company, which were consolidated. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Edward M. Lockwood, of Norwalk, John D. Fearhake, of New Canaan, and Edward D. Freeman, of New York City, for appellant. William L. Barnett, of New York City, for appellee.

BEACH, J. The facts which the plaintiff's evidence tended to prove are very simple: On September 8, 1913, the plaintiff's decedent, Addison T. Millar, was driving his automobile along Main street in the city of Norwalk. His wife and daughter and a guest were with him in the car. At the corner of Main street and the New Canaan road he turned to the west down a gentle incline, intending to pass over the single track of the New Canaan branch of the defendant railroad which crossed the New Canaan road at grade about 150 feet from Main street. On the other side of the crossing Tindale avenue diverged from the New Canaan road; both highways being well traveled and fairly straight for a considerable distance beyond the crossing. The crossing was blind and dangerous, and the Public Utilities Commission had, in March, 1913, ordered the defendant railroad to station a flagman there "to give warning to the traveling public on said highways of the approach of all engines, cars, and trains." As the plaintiff's intestate turned the corner and drove down the hill toward the crossing he threw out the clutch of his car, put on the brake, and slowed down to something less than 10 miles an hour. The approaching train, running at the rate of 40 miles an hour, was hidden from sight by a bank on the northerly side of the highway. The engineer and fireman of the train testified that the whistle was blown for the crossing and that the bell was ringing. An eyewitness of the accident testified that he heard the whistle, and that at the time Mr. Millar turned his car from Main street toward the track the defendant's flagman was standing in the traveled part of the highway on the easterly or Main street side of the crossing, facing west, and waving a white flag back and forth across the highway. This he continued to do until the automobile coming from behind him was about 30 feet from the track, when the flagman turned, held up his hand, and took one or more steps toward the automobile, shouting loudly to the occupants to stop. The automobile did not blow any horn and did not appear to the witness to change its speed, but went on and was struck by the train. The daughter of the plaintiff's decedent testified that she saw the flagman waving his flag, but did not hear the train or hear the flagman's warning shout; that they approached the crossing slowly, and at the last moment put on speed to escape. The plaintiff's decedent had frequently driven over this crossing, but it did not appear that he had ever observed a flagman there. The flagman was not called as a witness by the plaintiff, and the facts above outlined were not contradicted. Upon this state of the testimony the trial court was justified in directing a nonsuit and in refusing to set it aside. It is claimed that the jury might have found that the plaintiff's decedent was in the exercise of due care on the theory that he had a right to interpret the flagman's presence in the highway, waving a white flag across the line of travel, as an assurance of safety and an invitation to cross the track. We think the jury could not reasonably have come to that conclusion. It is a matter of common knowledge that flagmen appointed to guard railway crossings do not stand in the traveled path waving flags except when, a train is approaching the crossing. There was nothing in the conduct of this flagman, who stood with his back to the approaching automobile waving his flag across its line of travel, which could reasonably suggest to the plaintiff's decedent that he was inviting him to cross in front of the approaching train. One who approaches a...