Gallagher v. New York & N. E. R. Co.
| Decision Date | 11 January 1889 |
| Citation | 18 A. 786,57 Conn. 442 |
| Court | Connecticut Supreme Court |
| Parties | GALLAGHER v. NEW YORK & N. E. R. Co. |
Appeal from court of common pleas, Fairfield county.
E. D. Robbins, for appellant. H. W. Taylor, for appellee.
The plaintiff in this case seeks to recover the value of a horse killed by a locomotive engine on the defendant's railroad track in the town of Brookfield. For a considerable distance at and near the place of the accident the defendant's track and that of the Housatonic Railroad Company lie side by side, with an intervening space of land 50 feet wide. The defendant's track is located on the west side of the Housatonic road, and nearly parallel therewith. The defendant had erected and maintained a sufficient fence on its west side, where its road abutted on private fields, but on the other side, between the two railroad tracks, it had erected no fence, and none had been erected by the Housatonic Railroad Company on either side of its track. In September, 1887, the plaintiff had placed his horse in the care of his father, who before the accident had placed it with two other horses to pasture on his home lot, which adjoins the Housatonic Railroad on the east side, and is not separated from it by any fence. On the west side is a ditch, and the southerly side, abutting on land of one Andrews, is marshy. There was no fence between Andrews' land and the Housatonic Railroad, and horses could pass either across the ditch directly onto the railroad track, or over the marsh onto land of Andrews, and thence onto the track. On the 5th of October, 1887, while the plaintiff's father and his family were at breakfast, the horses passed from the home lot, by one of the routes mentioned, across the track of the Housatonic road, onto that of the defendant, where the plaintiff's horse was struck by the defendant's locomotive and killed. The defendant suffered a default, and moved for a hearing in damages, upon which the facts were found by the court below, and judgment rendered for the plaintiff to recover full damages. Two questions were made before the trial court, which have come to this court for review upon the defendant's appeal, namely: Do the facts show negligence on the part of the defendant? Do they show contributory negligence on the part of the plaintiff?
In regard to the defendant's negligence, there is no allegation in the complaint, nor was it claimed upon the trial, that it consisted in mismanaging the train in any respect, but it was predicated entirely upon the want of a fence between the two railroads. Upon this part of the case the decisive question is whether it was the duty of the defendant to erect such a fence; and this is a pure question of law, depending upon the true construction of section 3505 of the General Statutes, which is as follows: "Every railroad company shall erect and maintain fences on the sides of the railroads operated by it at such place or places as the railroad commissioners shall direct, and every railroad company operating any railroad constructed under any act of incorporation passed since the first Wednesday of May, 1850, or hereafter constructed, shall cause sufficient fences to be erected and maintained on the sides of such railroads, except at such place or places as the railroad commissioners shall adjudge them unnecessary, such fences to be erected by all companies hereafter organized within twelve months after they enter upon and take possession of the lands through which their railroads pass." And by section 3507 it is provided that "any person who without neglect on his part shall...
To continue reading
Request your trial
-
Bahre v. Hogbloom
...through the application of another statute. Bridgeport v. Stratford, 142 Conn. 634, 643-644, 116 A.2d 508; Gallagher v. New York & N.E.R. Co., 57 Conn. 442, 445, 18 A. 786. The defendants take the position that the last sentence of § 2288c, pertinent provisions of which appear in footnote, ......
-
City of Bridgeport v. Town of Stratford
...position. It is to be presumed that the General Assembly did not intend to work an absured consequence. Gallagher v. New York & N. E. R. Co., 57 Conn. 442, 445, 18 A. 786, 5 L.R.A. 737. 5 When a statute is ambiguous in terms and fairly susceptible to two constructions, one of which will avo......
-
Edwards v. Salt Lake & Utah R. Co.
...parallel railroads where their rights of way are contiguous, some cases supporting the view expressed in the case of Gallagher v. New York, etc., R. Co., supra, relied upon by appellant herein, and others taking opposite view. The difference of opinion may be accounted for in a measure by t......
-
Bates v. N.Y. & N. E. R. Co.
...upon whether in so doing or omitting to do the defendant violated any duty, and that is always a question of law. In Gallagher v. Railroad Co., 57 Conn. 442, 18 Atl. Rep. 786, the trial court made a finding of facts, and expressly found that the defendant was negligent; but this court revie......