Campbell v. New York, N. H. & H. R. Co.

• Court: Supreme Court of Connecticut
• Citation: 102 A. 597,92 Conn. 322
• Decision Date: 15 December 1917
• Parties: CAMPBELL. v. NEW YORK, N. H. & H. R. CO. et al.

102 A. 597
92 Conn. 322

CAMPBELL.
v.
NEW YORK, N. H. & H. R. CO. et al.

Supreme Court of Errors of Connecticut.

Dec. 15, 1917.

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

Action by Alexander Campbell, administrator, against the New York, New Haven & Hartford Railroad Company and the Standard Oil Company to recover damages for negligence. A verdict was directed for the defendant Railroad Company, and a verdict rendered for plaintiff against the Standard Oil Company, and plaintiff and the Oil Company appeal. Affirmed.

Joseph P. Tuttle and Thomas J. Spellacy, both of Hartford, for appellant.

Standard Oil Co. Howard W. Taylor, of Danbury, and Nehemiah Candee and John T. Dwyer, both of South Norwalk, for appellant.

Campbell. William L. Barnett, of New Haven, for appellee Railroad Co.

WHEELER, J. The case was tried to the jury, but it appears from the record that most of the facts were not in dispute. The Standard Oil Company on August 17, 1911, owned and used a yard for the storing of petroleum and its products. In the yard were five spur tracks and one main track, which passed through the gates of the yard to a connection with the defendant railroad outside the gates. These tracks were numbered from 1 to 6. The railroad brought daily into the yard cars loaded with material for the oil company or empty cars owned by the Union Tank Company, which were loaded by the oil company with its products and transported out of the yard and to their destination by the railroad. An employe of the oil company gave to the conductor of the train upon reaching the gates instructions, oral or written, as to the location in the yard of the incoming cars, and as to which were the outgoing cars. The train would not enter the yard until an employe of the oil company opened the gates and threw the semaphore at a crossing of a trolley road outside them gates.

The oil company had no control over the operation of the train in or out of the yard, and no control over the train crew; these remained under the exclusive control of the railroad. The oil company exercised no ot.her

102 A. 598

duties in connection with the train except to open the gates, to throw the semaphore, and to hand the conductor of the train his j instructions as to the location of the incoming cars and as to the cars to be taken out of the yard. Under its agreement with the tank company, the oil company repaired the cars of the tank company when found necessary, and it had on the day in question three men so employed, Melnnis, Morrow, and the deceased, Leinster, and a part of their work was the painting of the cars in the yard requiring painting, and under as well as over all other parts of the cars. The cars were repaired on all of these tracks.

On the day in question, an engine and four cars with a crew consisting of an engineer, a fireman, two switchmen, and a conductor, ran to the yard and received at the gate instructions as to incoming and outgoing cars. The engine then pushed into the yard four cars to be left there, and the crew was proceeding in due course with their work when Leinster, one of the three men engaged in repair work, was either caught between two cars on track 5, or knocked down by the impact of two cars, while he was either at work under one of the cars, or standing near one of the cars and outside the track.

The plaintiff claimed the injury occurred on track 4, the defendants near track 5. The jury found by its answer to an interrogatory that it occurred on track 5, and on the evidence this fact must be taken as conclusively established. The plaintiff claimed to have proved that the car was pushed against the car under which he was at work without notice to him of the approach of the train. The defendants claimed to have proved that Leinster had been instructed to place a blue flag in front of the car on which he was working, and this was a warning to the train not to approach, and that he had failed to do this. The plaintiff also claimed to have produced evidence that Leinster was engaged in the due course of his work painting underneath the car when he received his injury. The defendants claimed to have proved that Leinster had no duty on track 5, and was not then engaged upon the oil company's work, nor under instruction from it, under which all work done by him was begun and pursued. The oil company contends that the verdict was against the evidence.

The case against the oil company must rest upon proof by a fair preponderance of the evidence that Leinster was at work in the course of his employment in painting a car on track 5, and that without notice to him of the...