Freedman v. N.Y., N. H. & H. R. Co.
Citation | 71 A. 901,81 Conn. 601 |
Court | Supreme Court of Connecticut |
Decision Date | 16 February 1909 |
Parties | FREEDMAN v. NEW YORK, N. H. & H. R. CO. |
Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.
Action by Ida Freedman, administratrix of Louis Freedman, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.
The plaintiff's intestate, Louis Freedman, was struck and killed by a train of the defendant on its Northampton Division, at a grade crossing on Brewster street in the city of New Haven. At the place of the accident the tracks of the Northampton Division run generally north and south, and cross Brewster street, an unpaved highway extending east and west, at grade. There were neither gates, nor flagman, nor electric warning bell at said crossing. It did not appear that any had been ordered by the railroad commissioners. The negligence alleged was (1) the propelling of the engine over the crossing at an unlawful and dangerous rate of speed, and without blowing the whistle or sounding the bell; (2) the failure to keep a proper lookout as the engine approached the crossing; and (3) the failure to stop the engine after the defendant had an opportunity to observe the peril of Freedman. The plaintiff's intestate was about 35 years of age. For several years before the accident he had conducted a grocery business on Dixwell avenue, a few blocks from the place of the accident. At about 9 o'clock of the morning of December 11, 1906, while driving westerly in an ordinary open grocery wagon, engaged in taking orders from his customers, he approached said crossing. At the same time there was approaching the crossing from the south a special train of the defendant, consisting of an engine, tender, and caboose, running, as claimed by plaintiff, from 40 to 50, and by defendant, from 25 to 35, miles an hour, and the sound of which could be distinctly heard. Freedman commenced pulling up his horse, as claimed by the plaintiff, at some 40 or 50 feet before reaching the crossing, and, as claimed by defendant, at about 20 feet from, or nearly on, the crossing. The engine struck the team just after it had got onto the crossing. It was stated by the trial judge to the jury, as an apparently conceded fact, that Freedman knew of the approaching train some time before he pulled up his horse. Several years before this accident the railroad commissioners, upon the petition of the mayor and common council of New Haven, had made an order requiring the defendant to omit the sounding of the whistle at a point 80 rods before reaching the crossing, as required by statute, and the whistle was not blown when the train approached the crossing at this time. The plaintiff offered the testimony of witnesses that they heard no bell ring, and the defendant of several witnesses who hoard it ring. It was apparently undisputed at the trial that at a point on Brewster street from 50 to 75 feet east of the track a train approaching from the south could be seen at a point from 500 to 600 feet south of the Brewster street crossing, and that the engineer first slackened the speed of the train in question and applied the emergency brake at a point about 100 feet south of the Brewster street crossing.
Of the numerous requests to charge, filed by the plaintiff in the trial court, but few are discussed in her brief. Of those so pursued only the two following need be noticed:
In charging the jury the trial judge said:
The statements contained in the paragraphs of the charge above, marked "4," "5," "6," and "7," are among the reasons of appeal assigned.
During his charge the trial judge read and explained to the jury the following written interrogatories, which he informed the jury the defendant had submitted, and that it would be necessary for the jury to answer: The jury returned a verdict for the defendant without answering any of said interrogatories, and the plaintiff thereafter filed a motion in arrest of judgment on the grounds: "(1) Of the misconduct of the jury in failing to comply with the direction of the court to answer several certain questions, or interrogatories submitted to them by the court with the direction that the same should be answered by the jury, and returned to court when they returned their verdict in the above cause; (2) in returning their verdict for the defendant without returning the answers to several certain...
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