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

• Court: Supreme Court of Connecticut
• Writing for the Court: THAYER, J.
• Citation: 84 Conn. 444,80 A. 283
• Parties: ELLIOTT v. NEW YORK, N. H. & H. R. CO.
• Decision Date: 15 June 1911

80 A. 283
84 Conn. 444

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

Supreme Court of Errors of Connecticut.

June 15, 1911.

Appeal from Superior Court, Litchfield County; Milton A. Shumway, Judge.

Action by James H. Elliott, administrator of one Tetro, deceased, against the New York, New Haven & Hartford Railroad Company for the death of decedent. There was a verdict and judgment for plaintiff, and defendant appeals, alleging error in the refusal of the court to set aside the verdict. Reversed, and new trial ordered.

See, also, 83 Conn. 320, 76 Atl. 298.

Donald T. Warner and Joseph F. Berry, for appellant. Thomas J. Wall, for appellee.

THAYER, J. The only question raised by this appeal is whether it was error for the

80 A. 284

trial court to refuse to set aside the plaintiff's verdict. The plaintiff's intestate, Tetro, was struck and killed by the defendant's train at a highway crossing just south of the East Litchfield station. He was familiar with the character of the crossing and with the running of the defendant's trains. He approached the crossing from the west. All the evidence tends to prove, and the plaintiff alleged and claimed the fact to be, that, to one thus approaching it, the crossing is a very dangerous one, for the reason that the railway curves to the west a short distance south of the crossing and passes through a rock-cut, so that a train approaching from the south cannot be seen by the traveler until each is very near to the crossing; and the rocks and high ground and other intervening obstacles between the train and the traveler so obstruct or deflect the noise of the train and the warning signals that it is difficult, if not impossible, for the traveler upon the highway near the crossing to hear them. Tetro was seated in a heavy wood wagon, driving a pair of horses attached thereto. The body of the wagon was 12 feet long, and he was sitting upon a bag of flour near the center of the wagon. The ground was frozen and the wagon made considerable noise. The horses were walking at the rate of four miles per hour. Without stopping to look or listen, he drove upon the track in front of a regular train which was approaching from the south, and which was then due at the station. The locomotive struck the team between the horses and the front end of the wagon. It is apparent that the team from the horses' heads to the rear of the wagon must have been at least 20 feet in length, and at the rate at which it was moving it would be at least seven seconds from the time the horses reached the danger line west of the tracks until the rear of the wagon passed the danger line on the east. A train 350 feet away at the time the horses reached the point of danger would, if going at the rate of 35 miles per hour, reach the crossing before the wagon had crossed the track, so as to be out of danger. From the center of the tracks at the crossing, a person can see down the tracks only 331 feet; when in the highway 15 feet west of the tracks he can see down the tracks only 246 feet; and when 20 feet west only 200 feet. The evidence shows that when the horses were on the track both they and their driver were aware of the approach of the train, and the horses "started to prance," and the driver attempted to urge them forward by slapping them with the...