McCarthy v. Consol. Ry. Co.

• Decision Date: 03 May 1906
• Citation: 79 Conn. 73,63 A. 725
• Court: Connecticut Supreme Court
• Parties: MCCARTHY v. CONSOLIDATED RY. CO.

63 A. 725

79 Conn. 73

MCCARTHY

v. CONSOLIDATED RY. CO.

Supreme Court of Errors of Connecticut.

May 3, 1906.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Frederick M. McCarthy, administrator of Frank Smokas, against the Consolidated. Railway Company. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

The finding showed these facts: The intestate was driving an empty farm wagon across the defendant's track on Quinnipiac avenue, in a thinly settled part of the town of New Haven, near Montowese, when the wagon was struck by an electric car, and his death was the result. The accident took place in broad daylight at the intersection of Smith and Quinnipiac avenues. The car was running on Quinnipiac avenue toward Smith avenue on a slight downgrade, at the rate of about 20 miles an hour, when, at a distance of about 250 feet from it, the motor-man saw the head of the horse which was drawing the wagon, approaching from Smith avenue. He thereupon sounded his gong and shut off the electric power, but made no other effort to slacken speed. The horse was approaching at a walk, which gait was maintained, until the intestate, seeing and hearing the car, pulled up, stopping the team with the horse's head from 6 to 10 feet from the nearest rail. There was nothing to prevent or interfere with his remaining with his team in that place till the car had passed by. The motorman saw him stop, supposed that he would remain where he was, and therefore allowed his car to proceed without applying the brake; but, within a second or two after stopping, the intestate struck the horse quickly with the reins and urged it forward upon the track. The car was then from 75 to 100 feet away and in full view. The motorman immediately applied his air brake "at emergency," but the wheels slid on the rails. He then threw it off and applied the "power at reverse," before the collision occurred. At the time of the collision the speed of the car had thus been reduced to about 12 miles an hour. It was brought to a stop about 146 feet from the point of collision. The car had a good sand box; but in the few seconds that elapsed between the starting forward of the horse and the collision the motorman had no reasonable opportunity to use the sand, and did not try to use it

The ultimate conclusions reached by the court, on which the judgment was founded, were these: (1) The speed of the defendant's car was dangerous under the circumstances of the situation. Though the plaintiff's intestate saw the car, and stopped his horse before he started to cross the track, the motorman was negligent in not reducing the speed of his car at once, as rapidly as possible. (2) When the motorman saw that the plaintiff's intestate intended to cross the tracks, he appears to have done all that could reasonably have been expected of him in the few seconds in which he had to act. (3) The plaintiff's intestate was guilty of contributory negligence.

Charles S. Hamilton and Denis F. Walsh, for appellant Harry G. Day, for appellee.

BALDWIN, J. (after stating the facts). At highway crossings, a street car has no paramount right as against any other vehicle approaching on the cross street. The right attaching to each is equal, and must be exercised with due regard to that attaching to the other, and so as not to interfere with or abridge it unreasonably. It is not necessarily the duty of the driver of an approaching team to wait until the street car has passed, nor is it necessarily his right to push on and cut off its advance. Each party must act reasonably under all the attending circumstances. The driver of an ordinary vehicle can, under ordinary circumstances, be justified in proceeding, at a highway crossing, to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the care act with reasonable regard to the rights of each other. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each par...