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

• Decision Date: 01 August 1923
• Citation: 291 F. 574
• Parties: ELUKOWICH v. NEW YORK, N.H. & H.R. CO.
• Court: U.S. District Court — Southern District of New York

291 F. 574

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

United States District Court, S.D. New York.

August 1, 1923

H. G McDowell and Bern Budd, of New York City, for plaintiff.

John M Gibbons, of New York City, for defendant.

LINDLEY District Judge.

Plaintiff alleged that her intestate, while he drove on a public highway, in a horse-drawn wagon, in the city of Norwich Conn., was killed by defendant's train, as it crossed the highway, through the negligence of defendant, in that no sufficient warning or signals were given, either by bell whistle, crossing bell, or otherwise; there being no crossing gates or watchman, though according to a posted sign a watchman was regularly in service there at certain other hours. It was also alleged that the view was obstructed. Defendant claimed that it was not negligent, that it complied with all statutory requirements as to signals or warnings and with all orders of the railroad commissioner of Connecticut, and that the injury was due to the negligence of plaintiff's intestate. The evidence was sharply in conflict, and the jury returned a verdict for defendant. Plaintiff now moves that the verdict be set aside and a new trial granted, chiefly upon the ground that the court erroneously charged the jury as to defendant's duty.

In the original charge the court instructed the jury that, even though they might believe from the evidence that defendant had complied with all statutes and commissioner's orders, yet if they should also believe from the evidence that the crossing was such and so situated that ordinary care on the railroad's part, acting as a reasonably prudent railroad company, for the safety of the public, demanded additional safeguards, then the failure to maintain such additional safeguards should be construed as negligence. To this portion of the charge defendant excepted. The jury, after retiring, addressed to the court in writing a question as to whether they had a right to find the defendant negligent, if they should find that it had complied with all the requirements of the law of Connecticut, as the court had defined such requirements. With the consent of both parties, the jury was then recalled for additional instruction upon such question.

In the meantime defendant's counsel had submitted to the court the decision of the Supreme Court of Connecticut in Dyson v. New York & N.E. Ry., 57 Conn. 9, 17 A. 137, 14 Am.St.Rep. 82, and plaintiff's counsel not having any authority from Connecticut overruling of modifying said case, and defendant's counsel strenuously insisting that Connecticut does not follow the general rule as outlined in the court's original charge, and that the case cited stated the recognized rule in that jurisdiction, the court, upon the faith of that decision substantially charged the jury that under the law of Connecticut, if the defendant complied with the law of that state as to the crossing warnings and signals, then it was not required to do more in that respect, and that they should ignore anything inconsistent with such proposition in the original charge.

Plaintiff now contends that the additional charge was erroneous, that the case cited has been modified, and that the law of Connecticut is in line with the general rule as defined in the original charge. If plaintiff's contention is correct, it is manifest that she did not receive a fair trial, and is entitled to have the evidence submitted under a charge in accordance with the law of Connecticut. In Grand Trunk Railway v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485, the Supreme Court had under consideration a charge where the court below said:

'If you find that, because of the special circumstances existing in this case, * * * it was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautious manner, the law authorized you to infer negligence on its part for any failure to adopt such safeguards as would have given warning, although you have a statute in Michigan which undertakes by its provisions to secure such safeguards in the way the statute points out. The duty may exist outside the statute to provide flagmen or gates or other adequate warnings and appliances, if the situation at the crossing reasonably requires that-- and of this you are to judge-- and it depends upon the general rule that the company must use its privilege of crossing the streets on its surface grade with due and reasonable care for the rights of other persons using the highway with proper care and caution on their part.'

The court said:

'That this instruction is in harmony with the general rule of

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