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

• Decision Date: 25 January 1917
• Citation: 99 A. 694,91 Conn. 301
• Court: Connecticut Supreme Court
• Parties: HAYES v. NEW YORK, N. H. & H. R. CO.

99 A. 694

91 Conn. 301

HAYES

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

Supreme Court of Errors of Connecticut.

Jan. 25, 1917.

Wheeler and Roraback, JJ., dissenting.

Appeal from Superior Court, Hartford County; Gardiner Greene, Judge.

Action by Mary L. Hayes, Administratrix, against the New York, New Haven & Hartford Railroad Company. Prom a judgment for defendant plaintiff appeals. No error.

Action to recover damages for personal injuries resulting in the death of the plaintiff's intestate, and alleged to have been caused by the defendant's negligence, brought to the superior court in Hartford county and tried to a jury. By direction of the court the jury returned a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

The plaintiff's intestate, Edward L. Hayes, while driving his automobile southerly on the main road between Hartford and New Haven, received injuries which caused his death by being struck by a train coming from the east as he was attempting to pass over a grade crossing in the town of Berlin. The crossing was a dangerous one, and especially so for travelers approaching it from the north, by reason of the view of the railroad tracks to the east being shut off for a considerable distance by buildings of the American Brick Company. These buildings consist chiefly of a long narrow brick kiln shed, 40 feet in height, running parallel to the railroad tracks and not far distant therefrom, and having its westerly end 200 feet from the highway and a two-story office building, 18 feet wide in front, standing about 25 feet from the highway and back from the crossing 139 feet. As a result of the presence of these buildings, a south-bound traveler's view of the tracks east of the crossing is obstructed for a considerable distance until he arrives opposite the office where, at a distance of 164 feet from the center of the tracks, there is an open view of them for 265 feet. From that point, continuing southerly, the unobstructed view gradually increases until at 65 feet from the crossing it extends up the tracks 470 feet, at 50 feet to 530 feet or more, and at 40 feet to 1,200 feet. Across the highway north of the main line there is a siding for the use of the brick company, and extending upon the company's premises up to and into the brick kiln building. Between the southerly rail of this siding and the northerly rail of the main line the distance at the crossing is 27 feet. Evidence was offered on behalf of the plaintiff that at the time of the accident there were two box freight cars standing on this siding on the brick company's premises, one end of the two cars being close to the shed and the other about 50 feet east of the highway. The presence of these cars would considerably lessen the distance on the highway from the main tracks that Unobstructed views of them could be had for a given distance. Under such conditions the range of vision easterly along the tracks at a point in the center of the highway in front of the office would be slight. At 135 feet northerly of the north rail of the main line it would be reduced to 70 feet; at 100 feet, to 90 feet; at 80 feet, to 110 feet; at 70 feet, to 130 feet; and at 50 feet, to 260 feet. At a distance of 35 feet 1,280 feet of the tracks were in full view. The highway at this point, at the time of the accident, was an improved road, in good condition with a slightly descending grade towards the south.

The testimony on behalf of the plaintiff, relating to the circumstances immediately attending the accident, was confined to that of two witnesses, one of them a man named Gilman who was riding with and beside Hayes at the time. Their testimony, denied in important respects by the defendant's testimony, was to the following effect: Hayes was unfamiliar with the crossing. He saw it as he approached, going something like 25 miles an hour, when he was about at a crossroad some GOO feet away. He thereupon threw out the clutch, put on the brakes, and gradually slackened his speed until he almost stopped, and was going not over 10 miles an hour when he reached a point about opposite the office. At that time a man, standing at the crossing without a flag, but in fact the flagman in the defendant's employ, beckoned to him to cross as the man had just previously done to a van which had crossed. Hayes then released the brakes, threw in the clutch, and at a constantly increasing speed proceeded on his way. When his front wheels were about at the siding crossing, Gilman, who was sitting at Hayes' right, heard the train, and, glancing to the east back of Hayes, saw it coining, and immediately jumped to the ground, landing not far from the north rail. Hayes went on, his speed at the time being about 20 miles an hour, and was struck by the train when partly over the crossing. There was no testimony that he looked, listened, or took other precautions for his safety. At the conclusion of the oral testimony, the court and jury, upon the agreement of counsel, visited and viewed the scene of the accident.

Herbet O. Bowers, of Manchester, for appellant. William L. Barnett, of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The complaint charges the defendant with negligent conduct, causing personal injuries to the plaintiff intestate, and nothing more, and avers the absence of contributory negligence on the part of the latter. The action is therefore one founded upon negligence, and recovery upon any other ground was not permissible. Pitkin v. Railroad, 64 Conn. 482, 490, 30 Atl. 772; Sharkey v. Skilton, 83 Conn. 503, 507, 77 Atl. 950. Plaintiff's counsel do not claim otherwise.

The only evidence tending to show negligence on the part of the defendant was that given on the plaintiff's behalf, to the effect that the flagman stationed at the crossing, its employé, beckoned to Hayes as he approached the crossing to proceed. Although this testimony was denied by the defendant's witnesses, the plaintiff was entitled to go to the jury upon the issue of the defendant's negligence, and for our purpose we are required to assume that the invitation to cross was given as testified.

The invitation thus given was one which Hayes had a right to rely upon to some extent, but not such an extent that he was thereby excused from making some use of his senses and taking some precautions for his safety. "A railroad crossing is * * * a dangerous place, and the man who knowing it to be a railroad crossing, approaches it is careless, unless he approaches it as if it were dangerous." Borglum v. N. Y., N. H. & Htfd. R. R. Co., 90 Conn. 52, 55, 96 Atl. 114, 175. One who is invited to cross by the conduct of the railroad company, or of its employés or agents, or even directly by such employs or agent, is not justified in acting as though it were not dangerous, and will not be permitted to throw off from himself all responsibility for the outcome. He is still bound to act with common prudence in view of the dangers of the place as well as of the invitation. Cottle v. N. Y., N. H. & Htfd. R. R. Co., 82 Conn. 142, 145, 72 Atl. 727; Dundon v. N. Y., N. H. & Htfd. R. R. Co., 67 Conn. 266, 272, 34 Atl. 1041; Ellis v. Boston & Maine R. R. Co., 169 Mass. 600, 602, 48 N. E. 839; Union Pacific R. R. Co. v. Rosewater, 157 Fed. 168, 171, 174, 84 C. C. A. 616, 15 L. R. A. (N. S.) 803, 13 Ann. Cas. 851.

The question before the jury on this aspect of the case thus became resolved into one as to whether Hayes did exercise the common prudence of one who, cognizant of the dangerous conditions surrounding the crossing, had received an invitation from the flagman to cross. In this connection it is not without significance to observe that Hayes did not know that the man who beckoned to him was a flagman or employé of the company. He carried no flag, it is said, or other indication of his position or employment. All that Hayes knew was that the man was standing beside the crossing, and was beckoning to him as he had to another car preceding his. This is not important as bearing upon the defendant's responsibility for the acts of the flagman, but it does possess significance in judging of the measure of prudence characterizing Hayes' conduct in relying upon the signal of one who was a stranger to him and throwing precautions to the winds.

But that feature of the case may be dismissed, and full effect given to the signal of the flagman as a known servant of the company. The evidence, upon which the plaintiff relies and must rely for recovery, discloses that Hayes received the invitation when, with clutch out and brakes on, he was proceeding slowly and with his car under full control along the highway some 150 feet from the crossing, where his view of the tracks to the east was practically cut off, and that he thereupon without further inquiry or means of information released the brakes, threw in the clutch, applied the power, and proceeded with ever-increasing speed down the grade towards the crossing. His increase of speed was such that it went up from 10 miles or less an hour to about 20 in the short intervening space traveled. There is no evidence tending to show that he looked or listened for the approaching train. The plain indications are that he did not look else he would have seen it a sufficient distance from the crossing to have enabled him to stop in safety, unless, indeed, his speed-was too great. When he had proceeded but halfway to the crossing and was 70 feet from it, he could have seen up the tracks 130 feet, and the train must have been within that distance at the time. If not, there can be no question that it was in full view when Hayes reached the 50-foot point where 260 feet of the tracks could be plainly seen. Gilman saw the train before the siding was reached, and took measures of escape. Hayes may also have seen, but by reason of his speed either did not dare to attempt to stop, or thought that he could succeed in crossing. As to this we may not...