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

• Decision Date: 07 February 1896
• Citation: 67 Conn. 266,34 A. 1041
• Court: Connecticut Supreme Court
• Parties: DUNDON et al. v. NEW YORK, N. H. & H. R. CO.

34 A. 1041

67 Conn. 266

DUNDON et al.

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

Supreme Court of Errors of Connecticut.

Feb. 7, 1896.

Appeal from court of common pleas, Fairfield county; Curtis, Judge.

Action by Richard Dundon and others against the New York, New Haven & Hartford Railroad Company. From a judgment for nominal damages, plaintiffs appeal. Affirmed.

Stiles Judson, Jr., for appellants.

William D. Bishop, Jr., for appellee.

FENN, J. The court below, after default, and upon a hearing in damages, found the following facts: On February 8, 1895, the railroad tracks of the defendant crossed at grade a certain highway, known as "Burr Road," in the city of Bridgeport. On said day a certain other highway crossing next east of said Burr road, and known as "Fairfield Avenue Crossing," was impassable to travel on the highway, on account of certain work being done thereat, under order of the railroad commissioners, for the purpose of separating the grades at that point. On said day, and for some time prior thereto, during the progress of the work, the travel was and had been diverted from said Fairfield avenue crossing to said Burr road crossing, resulting in considerable travel passing daily over said Burr road crossing. During the period in which the travel was so diverted over the Burr road crossing, the defendant maintained a flagman at said crossing for the purpose of warning travelers on the highway of the approach of trains, and for signaling approaching trains whether or not the crossing was safe for them, and said flagman was on duty upon said day. The defendant maintained said flagman at said crossing of its own volition, and not in pursuance of any order of the railroad commissioners of this state. On the day in question one Collett, a driver in the employ of the plaintiffs, was leading the plaintiffs' horse, which was attached to a coal cart loaded with coal, over said Burr road, and was approaching said grade crossing from the south, the railroad tracks at that place running east and west As said Collett approached said crossing, a regular daily train from the east was due at said crossing. Collett had frequently crossed over said Burr road crossing, and was perfectly familiar with it, and knew that a flagman was stationed there, and was accustomed to rely wholly upon the flagman to warn him of the approach of a train. As he was approaching said crossing, at about 1 o'clock in the afternoon on said day, the wind was blowing, and it was also snowing; but there was an unobstructed view up and down the tracks in both directions for a distance on the highway of several hundred feet before he reached said crossing, and at any point in this several hundred feet a train could have been easily seen for a long distance up and down the tracks. Said Collett, in approaching said crossing, was leading his horse in such a manner that the horse's head was between him and the approaching train. When he had arrived within about 25 feet from said crossing, he stopped and looked to see whether the flagman was upon the crossing displaying the usual signal of the approach of the train. The flagman was absent. Collett, relying upon his absence as an assurance of safety, led his horse upon the crossing, taking no other precautions whatever to acquaint himself of the approach of the train, which could easily have been seen by him, if he had looked in its direction, in ample time for him to have avoided the collision which occurred as hereinafter stated. As Collett drove upon the tracks the flagman, who then for the first time appeared, shouted to him from the north side of said tracks to warn him of the approaching train, and said Collett drew his horse to the left as quickly as possible after said warning, but too late to avoid the collision; the train striking and demolishing the cart, scattering the coal, and injuring the horse so as render it perfectly useless. The flagman came upon said crossing too late to warn said Collett of the approach of said train. The plaintiffs' property was damaged thereby to the amount of $242. The court found, upon the foregoing facts that the defendant was not guilty of negligence, and that the plaintiffs' servant was guilty of contributory negligence. The plaintiffs claimed that the failure of the flagman to appear upon said crossing in time to warn the plaintiffs' servant was negligence on the part of the defendant, and the proximate cause of the damage sustained, and, furthermore, that the failure of the said driver to look in the direction of said approaching train, and his relying solely upon said flagman, did not constitute, under the facts of this case, contributory negligence. These claims the court overruled, and rendered judgment for nominal damages only. The plaintiffs thereupon appealed to this court.

The first inquiry which offers itself to us, upon the examination of the record, is, does the finding upon the matter of negligence, as relates to...