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

• Court: Connecticut Supreme Court
• Writing for the Court: BALDWIN, C. J.
• Citation: Cottle v. N.Y., N. H. & H. R. Co., 72 A. 727, 82 Conn. 142 (Conn. 1909)
• Decision Date: 06 May 1909
• Parties: COTTLE v. NEW YORK, N. H. & H. R. CO.

72 A. 727

82 Conn. 142

COTTLE

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

Supreme Court of Errors of Connecticut.

May 6, 1909.

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by Anna Cottle, administratrix, against the New York, New Haven & Hartford Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Nathaniel R. Bronson and Lawrence L. Lewis, for appellant. John P. Kellogg and Joseph F. Berry, for appellee.

BALDWIN, C. J. The plaintiff's evidence presented this case: The intestate, while driving in the town where he had long resided on the highway at a point where it was crossed at grade by the defendant's railroad, was struck and killed by a train consisting of two cars and a locomotive with its tender. The train had just come around a curve, and was going at a speed of some 30 miles an hour, headed by the tender. The crossing was a dangerous one. The view of the track to one driving toward it on the highway was obstructed by a hill and a bank wall between the track and the highway, extending back from a point near the crossing for several rods along the highway. One approaching the crossing in the direction in which the intestate was going could not see any considerable distance up the track on which the train was being run, until he was some 25 or 30 feet from it. The hill also, if the wind is from a certain quarter, often prevents one in the highway near it from hearing the locomotive whistle when sounded on an approaching train. The intestate was driving a light wagon at a speed of five to seven miles an hour, and, when his horse's head was two or three feet from the tracks, first observed the approaching train. He then tried to pull up the horse, but a collision was inevitable, and he was instantly killed. When he was from 30 to 60 feet from the track, two men sitting by the road side heard the rumble of the coming train, and called to him to stop. He turned to them with a bow and smile, apparently not understanding what they said, and did not slacken speed. The signals by bell or whistle of the approach of the train required by Gen. St. 1902, § 3787, were not given.

Assuming the facts to be as thus stated, negligence on the part of the defendant was established; but the burden which lay on the plaintiff of proving the absence of contributory negligence on the part of her intestate was plainly not satisfied. Morse v. Consolidated Ry. Co., 81 Conn. 395, 71 Atl. 553. A traveler approaching a crossing so dangerous in character is bound to exercise a care proportioned to the danger. While the intestate had a right to rely to some extent on the fact that no bell was being sounded or whistle blown, this did not excuse him from either looking or listening to ascertain whether a train might...