Metcalf v. Cent. Vermont Ry. Co.

• Decision Date: 08 March 1906
• Court: Connecticut Supreme Court
• Parties: METCALF v. CENTRAL VERMONT RY. CO.

63 A. 633

78 Conn. 614

METCALF

v. CENTRAL VERMONT RY. CO.

Supreme Court of Errors of Connecticut.

March 8, 1906.

Appeal from Superior Court, Windham County; Silas A. Robinson, Judge.

Action by Jennie M. Blackwell Metcalf, as administratrix of Leander Blackwell, deceased, against the Central Vermont Railway Company, for the wrongful death of plaintiff's intestate. There was a bearing in damages after default, on which facts were found and judgment rendered for plaintiff, for a substantial amount, and defendant appeals. Affirmed.

The plaintiff's intestate, Leander Blackwell, was killed while attempting to cross the tracks of the defendant at the grade crossing just north of the South Windham station. The station is used for both freight and passenger service, and the structure proper is situated 145 feet south of the crossing, where one main line of tracks and two sidings cross the highway. The main line is between the sidings and passes on the west side of the station. The easterly skiing leaves the main line some distance south of the station, passes to the east of the building, and returns to the main line a short distance north of the crossing in question. At the north side of the crossing the nearest rails of the main line and siding are 8 feet apart, and at the south side 15 feet. The defendant maintained an automatic bell at the crossing as a warning of the approach of trains. On the day in question two freight cars stood on said east siding "just a little south" of the crossing. Just prior to the accident, which occurred in the early morning, the plaintiff's intestate was engaged in loading some grain from the east side of one of said cars upon a sled drawn by two horses. This task completed, he got upon the sled and, standing thereon, drove at a walk by the side of the cars to the highway and turned upon it, intending to cross. An extra freight was approaching from the south. The engineer of this train, when he was about 300 feet from the crossing, caught sight of Mr. Blackwell's horses, which had just come from behind the cars. He himself was not then in sight, as the cars still shielded him from the engineer's view. As the train and team advanced, Mr. Blackwell, standing upon the sled, came quickly into view from behind the car, and almost as soon as the engineer thus caught sight of him, Mr. Blackwell looked up the track and saw the train. The horses were then on the main track, and he lashed them to get out of the way of the train, but they failed to respond, and the engine struck the sled, instantly killing Mr. Blackwell. The court found that the defendant failed to sound the engine whistle and bell, as required by law, and was therein negligent. It also found that it was otherwise negligent in that the electric bell was out of order and did not sound upon the approach of the train. It was found that Mr. Blackwell was not guilty of contributory negligence.

Walter C. Noyes, for appellant. George W. Melony, Charles E. Searls, and Frank F. Russell, for appellee.

PRENTICE, J. (after stating the facts). Various errors are assigned. It will be convenient, however, to consider those which are pursued in the order that they are discussed in the appellant's brief and as they are there grouped and stated. The complaint alleged that the electric bell at the crossing was out of order and did not give any sound or warning, and that by reason of this failure, and other failures in duty on the part of the defendant, no proper warning of the approach of the train was given. The defendant gave notice of its intention to disprove these among other allegations, and offered evidence in refutation of both the general averment of a failure to give a proper warning and the particular one as to the condition and action of the electric bell. The evidence to refute the allegation as to the bell consisted of testimony that it sounded at the passage of trains the night previous to, and at a later hour on the morning of, the accident, and of expert testimony to the effect that in such case it was impossible for it to have failed to work at the time of the accident. In reply, the plaintiff offered a witness who testified that he had been familiar with the bell for many years, and he was asked as to its operation during that time—as to whether it had been regular or otherwise. To this question and others succeeding, intended to show the intermittent and irregular operation of the bell and eliciting replies that its operation was irregular, at times sounding for one train and not sounding for the next, objection was made, and error is assigned of the rulings of the court admitting them. The evidence was clearly pertinent and admissible. The defendant depended for its attempted disproof of the allegations of the complaint upon the presumption arising from the ringing of the bell shortly before and shortly after the accident and the additional force given to that presumption by the expert testimony. Nothing was better calculated to break the force of that presumption and its supporting proof than direct testimony that the action of the bell in fact was, and long had been, intermittent and erratic, in such a way as to render it not unlikely that it would do what it was sought to show could not and therefore did not do.

It is complained that the trial court erred in finding, as it did, that this bell was out of order and did not sound at all as the train approached the crossing, and the charge is that there was no evidence upon which such a finding could be predicated. It is unnecessary to inquire whether or not this charge is well founded, since the court has elsewhere found that the defendant had failed to disprove the allegation in the complaint to the same effect The affirmative finding of the fact could not, therefore, have harmed the defendant, who, having failed to negative the averment of the complaint, would, as the consequence of its default, have been liable in substantial damages. Lawler v. Hartford Street Ry. Co., 72 Conn. 74, 85, 43 Atl. 545; Bergin v. Southern New England Telephone Co., 70 Conn. 54, 65, 38 Atl. 888, 39 L. R. A. 102.

It is said that the trial court erred in ruling that the defendant was guilty of negligence, in that this bell was out of order at the time of the accident. Here again it would not help the...