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

• Court: Supreme Court of Connecticut
• Writing for the Court: THAYER, J.
• Citation: 83 Conn. 320,76 A. 298
• Decision Date: 14 June 1910
• Parties: ELLIOTT v. NEW YORK, N. H. & H. R. CO.

76 A. 298
83 Conn. 320

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

Supreme Court of Errors of Connecticut.

June 14, 1910.

Appeal from Superior Court, Litchfield County; George W. Wheeler, Judge.

Action by James H. Elliott, administrator of Charles S. Tetro, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment for plaintiff, defendant appeals. Error, and new trial ordered.

Action to recover damages for injuries claimed to have been caused by the defendant's negligence; brought to the superior court for Litchfield county and tried to the jury before G. W. Wheeler, J.; verdict and judgment for the plaintiff and appeal by the defendant, assigning as error the court's refusal to direct a verdict in its favor or to set aside the verdict which was rendered and certain instructions given the jury.

Donald T. Warner and J. F. Berry, for appellant. Caleb A. Morse and T. J. Wall, for appellee.

THAYER, J. The plaintiff's intestate was killed while attempting to drive across the

76 A. 299

defendant's railroad at a grade crossing located near to its East Litchfield station. The court refused to direct a verdict for the defendant or to set aside the plaintiff's verdict as it was requested to do by the defendant, and those refusals constitute two of the assigned errors upon which this appeal is based. The ground of the motions was that the evidence failed to show that the intestate, Tetro, was free from contributory negligence, but that it showed, on the contrary, that he was guilty of such negligence, in that he did not stop in order to properly use his senses before driving upon the crossing as reasonable care required that he should do under the peculiar circumstances of the case.

Upon reading the evidence it is difficult to avoid the conclusion that Tetro failed to use reasonable care in approaching and driving upon the crossing. But the plaintiff alleged in his complaint and claimed upon the trial that, after Tetro was upon the crossing and in peril, the defendant was negligent in failing to properly manage, control, and stop its train after it knew or ought to have known of that peril. The jury were told in substance that, if they should find the fact to be as thus claimed, the defendant would be liable unless some negligence of Tetro subsequent to the defendant's knowledge of his peril contributed to his injury. A question for the jury was thus presented whether, entirely apart from Tetro's negligence in getting upon the track, the defendant negligently failed in its duty towards him after it knew or ought to have known of his presence there and his peril. If the charge was correct, and if there was evidence in the case which warranted the charge, a verdict could not properly have been directed for the defendant upon the ground claimed. If the defendant's negligence supervened and caused the collision, Tetro's negligence in driving upon the track would be too remote to constitute contributory negligence. Baldwin, American Railroad Law, 425; Smith v. Conn. Ry. & L. Co., 80 Conn. 208, 270, 67 Atl. 888, 17 L. R. A. (N. S.) 707. The motion to direct a verdict for the defendant was therefore properly denied. The motion to set aside the verdict and grant a new trial, based upon the same ground, was properly denied for the same reason; but as no appeal was taken from that refusal the question is not properly here. We decide it because it was argued before us and involves no separate discussion.

The defendant complains that the court instructed the jury that they might find the defendant negligent on account of the speed of the train over the crossing provided they found exceptional circumstances, and that they might find the circumstances to be so exceptional as to require more than the statutory signals to be given. An examination of the charge shows that the instructions complained of were in effect the same as those given with respect to the defendant's liability for supervening negligence already referred to, namely, that if the defendant's engineer knew or ought to have known of Tetro's peril, then, if reasonable care required that something more than the statutory signal should be given, the defendant was bound to give it, and that, if a reasonably prudent man would have slowed down, then the defendant's engineer should have done so. These were the exceptional circumstances referred to, and it was left for the jury to find whether they existed or not. The jury were correctly told that negligence cannot ordinarily be inferred from speed alone, and that under ordinary circumstances only the statutory signals are required. So far as appears from the finding, no claim was made that there were any exceptional circumstances in the physical situation at the crossing and nothing in the charge suggested to the jury that they might so find. The exceptional circumstances which were claimed by the plaintiff and referred to by the court as making the ordinary speed dangerous at the crossing and as calling for other than the statutory warning were the presence and peril of Tetro thereat. This part of the charge may therefore be considered in connection with the part already referred to, as its correctness depends upon the same considerations. If that part of the charge was correct, this part was not erroneous.

The correctness of the court's charge upon the question of the defendant's supervening negligence above mentioned is not questioned so far as it states the duty of the defendant after it had actual knowledge of the intestate's peril. In this respect it is in accordance with the established law in this state. Smith v. Conn. Ry. & Ltg. Co., supra. So far as it imposes the same duty upon the defendant before it had such knowledge the charge is claimed to be erroneous. The charge was that if the defendant knew or ought to have known of the peril, it was its duty to...