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

• Decision Date: 07 June 1907
• Citation: 80 Conn. 48,66 A. 1020
• Court: Connecticut Supreme Court
• Parties: COWLES v. NEW YORK, N. H. & H. R. CO. et al.

66 A. 1020

80 Conn. 48

COWLES

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

Supreme Court of Errors of Connecticut.

June 7, 1907.

Appeal from Superior Court, Hartford County; Edwin B. Gager, Judge.

Action by Walter G. Cowles, administrator of Nellie F. Cowles, against the New York, New Haven & Hartford Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The defendants own and operate a railroad running from Middletown, crossing the Connecticut river upon a bridge, and thence running easterly to the village of East Hampton and beyond. About three miles westerly from East Hampton the railroad crosses at grade the main highway between Middletown and East Hampton. The place is called "Taylor's Crossing." The railroad at this point is double tracked. The railroad runs in a straight line for a distance of 000 feet westerly of the crossing and 500 feet easterly. The highway is substantially parallel to the railroad from East Hampton to Taylor's Crossing, near which place it takes a northwesterly direction, and crosses the railroad at an angle upon the southeast of about 45 degrees. The tracks at the crossing are laid upon an embankment some 18 feet high, and for approaching the crossing from the southeast an embankment has been built in the highway commencing some 250 feet from the tracks and rising from the natural level of the highway at its commencement to the grade of the tracks. There is a similar embankment on the other side of the crossing. The highway at Taylor's Crossing is 4 rods in width, and the approach or embankment in the highway is some 25 feet in width at the top. This approach is fenced upon each side by a four-board whitewashed fence, which connects at the crossing with the cattle guard on each side. On the land adjoining the southwesterly side of the highway, for a distance of about 500 feet from the crossing, trees and shrubbery have been planted, extending to the intersection of the southerly line of the railroad right of way with the line of the highway at a point about 50 feet south of the southerly track. From this point to within 10 feet of the southerly track, trees and bushes have grown on a piece of land which lies within the limits both of the defendants' right of way and of the highway, and which is westerly of the four-board whitewashed fence on the westerly side of the approach. The trees and shrubbery on the land of adjoining proprietors and trees and bushes on the land within the defendants' right of way together form a continuous material and substantial obstruction to the view of defendants' tracks to the west and of trains approaching thereon to the traveler approaching said tracks from the southeast. On October 7, 1905, Walter G. Cowles, with Nellie F. Cowles, his wife. Richard G. Cowles, their son five years of age, and Lyde A. Keagy, sister of Mrs. Cowles, were riding in an automobile, the property of Mr. Cowles, from East Hampton to Middletown, along said main highway. At East Hampton said highway passes under said railroad, and at a point about a mile easterly of Taylor's crossing passes over said railroad, and the railroad is in plain view at frequent intervals and for considerable distances between Taylor's crossing and East Hampton, and within some 800 feet before reaching the crossing a high embankment of the railroad upon a curve toward the south is in full view from said highway, and about 300 feet nearer to Taylor's Crossing a side highway runs northerly, crossing the railroad at grade at a distance of some 300 feet, and the main highway bends northwesterly toward the railroad, intersecting it at Taylor's Crossing at a distance of about 500 feet. At about 0 p. m. Mr. Cowles drove his automobile, which was being operated under his personal direction and supervision by his servant, upon the south track at Taylor's Crossing at the same time an express train of the defendants' passed to the east over the same track. The train was driven at the rate of 28 miles an hour, the automobile at the rate of 15 miles an hour. As a result of the collision Mrs. Cowles and her son were killed, and Lyde A. Keagy was seriously injured. The automobile was rendered useless. On October 30, 1905, Mr. Cowles was appointed administrator of the estate of his wife, and on the following February 3d as such administrator brought this action to recover damages for the injury to Mrs. Cowles alleged to have been caused by the negligence of the defendants. The defendants suffered a default and filed a written notice, in pursuance of the statute, that upon the hearing in damages they would offer evidence to disprove their negligence as alleged and to prove contributory negligence. Upon a hearing in damages the court found that the injury to Mrs. Cowles was due to the negligence of the defendants, and was also due to the negligence of Mr. Cowles, and held that the plaintiff as administrator on Mrs. Cowles' estate was entitled to recover substantial damages notwithstanding the injury to his intestate was caused by the concurring negligence of the defendants and Mr. Cowles. Thereupon the court assessed substantial damages at the sum of $5,000, and rendered judgment that the plaintiff recover that amount. The reasons assigned by the defendants in this appeal from that judgment are first, that the court based its finding of actionable negligence wholly upon an erroneous proposition of law, and that upon the facts as found by the court the alleged actionable negligence was as a matter of law disproved; and, second, in holding that the negligence of Mr. Cowles was not in legal effect equivalent to the contributory negligence of Mrs. Cowles. On the same day that this action was brought Mr. Cowles, as administrator on the estate of his son Richard G. Cowles, brought an action against these defendants to recover damages for the injury to his son. Lyde A. Keagy brought an action to recover damages for the injury to herself, and Walter G. Cowles brought an action to recover damages for his loss of the services of his wife, for the money expended by him for her medical treatment, for the loss of the services and earnings of his son, and for the injury to his automobile, alleged to be a 30-horse power car of the value of $4,000. The defendants suffered a default, giving notice of hearing in damages in each of these three cases. They were tried together with the present case, and one finding was made for the four cases. In the case brought by Mr. Cowles in his own name nominal damages were assessed, and the plaintiff appealed. In the other two cases substantial damages were assessed, and the defendants in each appealed.

John T. Robinson and Lucius F. Robinson, for appellants. William Bro Smith and Robert C. Dickenson, for appellee.

HAMERSLEY, J. (after stating the facts). The trial court finds that the defendants were guilty of negligence in permitting the existence without cause or necessity, of trees and bushes upon their right of way which caused an obstruction to a view of the defendants' tracks by a traveler in the highway approaching the public crossing, and finds that the defendants were guilty of no other negligence than that of permitting said bushes and trees to grow within their right of way.

The essence of actionable negligence is the infringement of the legal right of another, or, in other words, the violation of a duty imposed by law in respect to another. Wilmot v. McPadden, 79...