Cote v. Palmer

• Decision Date: 26 November 1940
• Citation: 127 Conn. 321,16 A.2d 595
• Court: Connecticut Supreme Court
• Parties: COTE v. PALMER et al.

16 A.2d 595

127 Conn. 321

COTE v. PALMER et al.

Supreme Court of Errors of Connecticut.

November 26, 1940

Appeal from Superior Court, Fairfield County; Edward J. Daly, Judge.

Action by Joseph D. Cote, administrator of the estate of Aline Cote deceased, against H. S. Palmer and others, trustees for the New York, New Haven & Hartford Railroad, to recover damages for intestate's death as alleged result of defendants' negligence in operating a train. Verdict and judgment for plaintiff after trial to a jury, and defendants appeal.

Error judgment set aside, and new trial ordered.

Edwin H. Hall, of Bridgeport, and James W. Grady of New Haven, for appellants.

John Keogh, Jr., of South Norwalk, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover damages for the death of his wife caused by a train of the New York, New Haven and Hartford Railroad, represented by the defendant trustees. The jury could reasonably have found the following facts: The accident occurred in Norwalk at a place where a single track runs east of and beside Elwood Place, separated from it only by a strip of land partly grass and partly gravel, at a point about 200 feet southerly of a highway crossing over Cross Street. Two paths start at the railroad on the east side of its right of way and run across open ground to Hoyt Street. These paths are well defined, plainly visible from any direction, and for many years had been much used by pedestrians, including children. There was a sign located near them, but the lettering on it had become nearly obliterated; after the accident it was repainted to state that the track was private property and to warn people to keep off. On the west side of Elwood Place are a number of houses standing about 50 feet from the track. The decedent and her family lived at the corner of Elwood Place and Cross Street. On the morning of the day of the accident, her daughter Aldea, aged eight years, left the house with another girl about thirteen years old to go to the latter's home on the east side of the track. The course which they took that morning does not appear in evidence, but ordinarily when Aldea was going along across the track she used the street crossing, although when going with older companions she sometimes crossed the track to the paths on the east side. After she had been gone a short time, the mother decided to go to get her. She came out of the house and, when in the roadway in front of it, saw Aldea on the northern of the two paths, near the track and walking alone toward it. At this time a freight train was approaching, proceeding northerly at a speed of 10 to 20 miles an hour. About 800 feet southerly of the highway crossing is the exit from a short tunnel. The track was straight from the tunnel to the highway crossing. The train had whistled at a whistling post before entering the tunnel, but not thereafter, and the sound came only faintly to the place where Aldea was approaching the track; no bell on the engine was ringing; and while the train was proceeding up the grade it was not making much more than the ordinary noise of an approaching train. The decedent, alarmed lest Aldea get on the track in front of the train, ran toward the entrance to the path in a diagonal direction, accompanied by an older daughter. She was shouting and ‘ waving her arms frantically, as if to attract the girl's attention,’ ‘ as if to make someone go back from the track’ ; and her conduct was such as to cause one witness to look to see why she was running. When she started, the train was just emerging from the tunnel. She was struck by the side of the engine just to the rear of the cowcatcher. At that time Aldea had come within about 3 feet of the track but was not struck by the train. The engineer of the train, seated upon the right side of the cab, saw the little girl approaching but his vision was considerably obstructed as regards anything occurring upon the left side of the track. The head brakeman was sitting on the left side of the cab, looking forward, and when in that position it was his duty to observe conditions ahead of the engine and, if there was need, to call the engineer's attention to them. He did not see the decedent running toward the track but nothing obstructed his vision and she was well within the range of it had he looked at all to the side of the track.

While the case for the plaintiff as regards the negligence of the defendants is not strong, we cannot hold that the jury could not reasonably have found for him upon this issue. The jury might have found that the long existence and general use of the pathways had resulted in a situation where the defendants were bound to exercise reasonable care toward persons using them; Ulrich v. New York, N.H. & H. R. Co., 98 Conn. 567, 569, 119 A. 890; and that this use and the surrounding circumstances were such as to impose upon the operators of the train a duty to be watchful to avoid injury to persons they knew or should have known were upon or likely to come upon the track at that point. Pomponio v. New York, N.H. & H. R. Co. 66 Conn. 528, 541, 34 A. 491,32 L.R.A. 530, 50 Am.St.Rep. 124; Dyson v. New York & New England R. Co., 57 Conn. 9, 22, 17 A. 137,14 Am.St.Rep. 82. The defendants are charged with knowledge of those conditions which the operators of the train should, in the exercise of reasonable care, have observed. Elliott v. New York, N.H. & H. R. Co., 83 Conn. 320, 324, 76 A. 298. The speed of the train could not reasonably have been held to be in itself negligent, but that would not necessarily free the defendants from the duty of reducing it so as to avoid the accident, in view of exceptional circumstances arising out of danger of injury which they knew or should have known. Elliott v. New York, N.H. & H. R. Co., supra, 83 Conn. 323, 76 A. 298. They were not entitled to assume that the little girl approaching the track would stop before reaching the zone of danger to the same extent that they could properly do in the case of an adult, for the lack of judgment natural to so young a child would have to be considered. Duggan v. Boston & Maine Railroad, 74 N.H. 250, 251, 66 A. 829; Indianapolis, Peru & Chicago R. Co. v. Pitzer, 109 Ind. 179, 183, 6 N.E. 310,10 N.E. 70,58 Am.Rep. 387; 3 Elliott, Railroads, 3d Ed., § 1668, p. 571.

Whether the fact that the engineer saw the child approaching on the pathway would in itself have been sufficient to require that he give additional warnings of the train's approach by whistle or bell or that he have it under such control that he could, if necessary, stop it before reaching the path, we need not decide. The jury could reasonably have concluded that the brakeman, sitting in the cab and looking forward, should have seen the decedent running toward the track under such circumstances as to indicate to him that there was need for caution in the operation of the train, that he should have conveyed this information to the engineer, and that had he done this, the fact, coupled with the engineer's own knowledge of the approaching child, was sufficient to require that, in the exercise of due care, he stop the engine or reduce its speed. If he had done either, the accident would not have occurred.

The question as to contributory negligence on the part of the decedent requires consideration of the so-called ‘ rescue doctrine,’ for only under that doctrine could she be held free from such negligence. It is succinctly stated in the Restatement as follows: ‘ It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm.’ Restatement, 2 Torts, § 472. In general support of this principle, the following cases, out of many, may be cited: Eckert v. Long Island R. Co., 43 N.Y. 502, 3 Am.Rep. 721; Wagner v. International R Co., 232 N.Y. 176, 180, 133 N.E. 437, 19 A.L.R. 1; Dixon v. New York, N.H. & H. R. Co., 207 Mass. 126, 129, 92 N.E. 1030; Perpich v. Leetonia Mining Co., 118 Minn. 508, 512, 137 N.W. 12; Bond v. Baltimore & Ohio R. Co., 82 W.Va. 557, 560, 96 S.E. 932, 5 A.L.R. 201; see, also, 3 Elliott, Railroads, 3d Ed., § 1814; note 19 A.L.R. 4. The statement quoted contains in itself a limitation, for it only applies where the effort to save is ‘ reasonable’ and it suggests a question as to the elements involved in determining what effort is to be deemed reasonable. The answer to that, so far as it admits of an answer, is that the same standard generally used in testing whether or not an act is negligent is to be applied; that is, the conduct of an ordinarily prudent person in the same circumstances as the plaintiff. ‘ The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do * * * in the presence of such existing peril.’ Pittsburg, C., C. & St. Louis R. Co. v. Lynch, 69 Ohio St. 123, 131, 68 N.E. 703,63 L.R.A. 504, 100 Am.St.Rep. 658. Among these circumstances, as the Restatement points...