Dyson v. N.Y. & N. E. R. Co.

• Citation: 17 A. 137,57 Conn. 9
• Court: Connecticut Supreme Court
• Decision Date: 20 July 1888
• Parties: DYSON v. NEW YORK & N. E. R. Co.

17 A. 137

57 Conn. 9

DYSON

v. NEW YORK & N. E. R. Co.

Supreme Court of Errors of Connecticut.

July 20, 1888.

Appeal from superior court, Hartford county; SANFORD, Judge.

Action by John B. Dyson, administrator of Charles Dyson, against the New York & New England Railroad Company, to recover damages for the death of the decedent, alleged to have been caused by the negligence of the defendant in the running of one of its trains; the decedent having been run over and killed at a grade crossing, while driving an omnibus on the highway. At the time of the accident the train was running at the rate of from 35 to 40 miles an hour. Judgment was given for plaintiff, and defendant appeals.

S. E. Baldwin and E. D. Robbins, for appellant. C. E. Mitchell and F. L. Hungerford, for respondent.

BEARDSLEY, J. The superior court finds that the collision which caused the death of the intestate was produced by the negligence of the defendant company, and has detailed the facts, and presumably all the material facts, upon which it formed that conclusion. The question presented by the second assignment of errors is whether these facts are legally sufficient to justify the finding of negligence. Such negligence is found to consist of a violation of duty by the defendant in three particulars: First, in running its train at so high a rate of speed over the crossing in question; second, in not protecting the crossing by a flag-man, gates, or some danger signal other than those which were employed; and, third, that the fireman on the train was negligent in not calling the attention of the engineer to the approaching omnibus.

Was the defendant company negligent by reason of the rate of speed which was maintained at the crossing? The crossing is just within the limits of the city of New Britain, and the highway which forms it is much traveled, but we infer from the finding, and especially from the photographic sketches of the locality, that it was not surrounded by a thickly-settled neighborhood. The train in question was running at a rate of speed which, though high, cannot, at the present day, be regarded as excessive for a fast passenger train, and we infer, from the finding that trains "customarily run over the crossing at a high rate of speed," that it was not unusual. The city of New Britain had made no order limiting the speed of trains at the crossing, though authorized by its charter to do so. We think that the court below erred in its conclusion that it was the legal duty of the defendant company to slacken the speed of its train. As a general rule, negligence cannot be inferred from speed alone. In the case of Warner v. Railroad Co., 44 N. Y. 465, the law is thus stated: "The law places no restrictions upon the rate of speed at which the trains may be run across the country, at the crossings of the highways or elsewhere; nor is the train required to stop or reduce the speed at such places; nor does the law subject the railroad company to liability for damages occurring from the rate of speed, if the signals required by law are observed." To the same effect are Telfer v. Railroad Co., 30 N. J. Law, 188, 192; Railroad Co. v. Lee, 68 111. 576; Same v. Harwood, 80 Ill. 88; Grows v. Railroad Co., 67 Me. 100.

It is found that the crossing was especially dangerous. It was undoubtedly so, as compared with those where the traveler upon the highway has a continuous view of the approaching train for a considerable distance. The fact that the view was intercepted for the distance of 200 feet on the highway, until the approaching train was within 20 feet of the crossing, and that the railroad curved as it approached the crossing, were elements of danger to the traveler upon the highway. The habits of men are such that all crossings of highways by railroads at grade are practically dangerous, and it is the policy of the state to abolish them as fast as is practicable. The danger arises mainly from the forgetfulness of the railroad employes or the inattention or temerity of the traveler upon the highway. This danger is obviously diminished where the conditions are such that the traveler is not required to rely upon the danger signals, but can see the approaching train in time to avoid it, and the engineer can see an object at the crossing in time to effectually reduce the speed of his train before reaching it. But such conditions are...