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

Decision Date16 February 1909
Citation71 A. 901,81 Conn. 601
CourtConnecticut Supreme Court
PartiesFREEDMAN 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:

"If the jury find that the train that struck and killed the plaintiff's intestate was operated at such a high rate of speed for said time and place as to constitute negligence, and that such negligence was the sole and proximate cause of the death of the plaintiff's intestate, then the verdict must be for the plaintiff."

"It was the engineer's duty, as well as the duty of all the other servants in charge of the said train, to keep a constant watch for pedestrians or vehicles at or near the crossing, and he should not run his train at a greater rate of speed than was reasonable and consistent with the customary use of the crossing by the public with safety."

In charging the jury the trial judge said:

"(1) The railroad commissioners having legally ordered the whistle dispensed with for this crossing, the defendant cannot be held liable for its compliance with this order, and its failure to blow this whistle for this crossing at the 80-rod point. The sole duty of the railroad with regard to general statutory signals was to ring its engine bell from the 80-rod point to the crossing.

"(2) The absence of a flagman at this crossing, and of a crossing signal bell, or of gates, or of any other form of protection, does not constitute a ground of negligence for which the defendant can be held liable, for the special designation by the statute of the whistle and bell signals excluded any obligation of providing other signals.

"(3) These are all, however, circumstances which should have a bearing on the general situation, and may have operated to affect the duty of the engineer to keep a lookout for travelers, and the duty of Freedman to look out for trains.

"(4) In addition to ringing or causing the bell to be rung the engineer owed no other duty, save in the case of exceptional circumstances, which will be treated of later. The engineer owed the duty of keeping a reasonable outlook, which, in that connection, meant a vigilant outlook, for travelers upon the highway at or near the crossing, so as to avoid injury to them; and, if the railroad failed to perform its duty, its liability is the same whether it saw, or might have seen, the person in time, by the exercise of reasonable care, so as to have avoided the injury.

"(5) Ordinarily the liability of a railroad cannot be found from speed alone, even though the speed be great, for negligence, as a general rule, cannot be inferred from speed alone. If the signals required by law are given, no liability to damage is attached to the railroad from the fact of the speed alone, except in certain cases, which are exceptional cases, and the speed then becomes an important element in a charge of negligence. As, for instance, if the circumstances be exceptional, and known to the railroad, or the peril of the plaintiff's intestate was known to the defendant. Doubtless in some cases, as our courts say, the company might be liable for the neglect of the engineer to slacken the speed of his train if by doing so he might have avoided a collision. As, if he was informed that a person was approaching the crossing in such a condition, or under such circumstances, as to indicate that he was heedless of the danger signals; as, if other sounds were prevailing, as of a thunder storm, which might render the sound of the signals indistinguishable. In such cases the company might properly be charged with the consequences of the personal negligence of the engineer.

"(6) The claim is that the circumstances in evidence present an exceptional case, in that the engineer of the defendant either knew or ought to have known of the peril of the plaintiff's intestate, and might thereafter have avoided injury to Freedman had the engineer exercised reasonable care.

"(7) If yon find Freedman was in peril, and the engineer knew, or ought to have known, it, then reasonable care required him to use every precaution to avoid the injury to Freedman which a reasonably prudent person, similarly situated, would use. If a reasonably prudent person would have, under these circumstances, blown the whistle or checked the speed or stopped the train, it was incumbent upon the engineer to have done this; and, if by so doing injury to Freedman would not have occurred, the defendant is liable, unless Freedman's own negligence thereafter essentially contributed to his injuries. If the doing of any of these things, or of any other things, after the engineer knew, or ought to have known, of this peril, would not have avoided the injury to Freedman, the defendant cannot be held liable for its failure to have done them."

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: "If you find the verdict for the plaintiff, you will answer the following interrogatories: (1) Before the collision was some part of an approaching train, consisting of an engine, tender, and caboose, at ail times visible from a point about 600 feet south of the Brewster street crossing up to the crossing to a person on the seat of an ordinary open grocery wagon approaching from the east, and within 75 feet of the crossing? (2) Did Freedman pull up his horse when close to the track, and just before the collision? (3) Or did Freedman pull up his horse when some 40 to 60 feet from the crossing? (4) Did Freedman know of the approach of the train while he was approaching the crossing, and before he began to pull up his horse? (5) Did Freedman look for a train before he began to pull up his horse? (C) Did Freedman listen for a train before he began to pull up his horse? (7) Did Freedman, while approaching the crossing, drive his horse at a trot until he commenced to pull him up?" 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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