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

• Decision Date: 30 January 1912
• Docket Number: 146.
• Citation: 193 F. 603
• Parties: NEW YORK, N.H. & H.R. CO. v. KMETZ.
• Court: U.S. Court of Appeals — Second Circuit

193 F. 603

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

No. 146.

United States Court of Appeals, Second Circuit.

January 30, 1912

Charles F. Brown and Charles M. Sheafe, Jr., for plaintiff in error.

Herbert C. Smyth and Rufus M. Overlander, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

On a bright, clear April day, the plaintiff, who was seven years of age, was run over by a train operated by the defendant and injured to such an extent that both legs were amputated above the knees. The point where the accident happened was on the defendant's main line about three miles east of Bridgeport, Conn. The four tracks had been fenced off from the streets running parallel with them upon either side by a wire fence, but for years prior to the accident there had been an opening at a point where Thompson avenue (which runs at right angles with the railroad) crosses Seymour street on the northerly side of the tracks, and another opening on the southerly side to Stratford avenue. This was not a regular street crossing, but the proof is that for years it had been used by persons residing in the vicinity and that many of the residents of Hollister Heights upon the northerly side of the track passed over this crossing to get their mail, which was delivered from a trolley car running on Stratford avenue. It also appeared that about 25 of the children attending school on the northerly side of the tracks passed over this crossing four times a day and it was also used by employes of the railroad company. This use of the crossing was open and notorious and was well known to the railroad officials. The approach to the railroad tracks upon both sides of the roadbed had been filled up and on the southerly side the depression had been bridged by a culvert placed there by employes of the railroad.

It is unnecessary to state the other facts relating to the locus in quo as there can be no question that for several years prior to the accident there had been a beaten path five or six feet wide across the tracks at Thompson avenue, which had been used habitually and daily by railroad employes, by school children and by the residents of Hollister Heights. Upon days when ball games were being played, it was used by a much larger number of people. All this was well known to the railway officials.

On the day in question, at about 11:30 o'clock the plaintiff and another boy crossed the tracks to Bratz's store on the southerly side to make a small purchase, and having done so started to cross again, intending to go home. He says that he stopped on the southerly side of the track until an east-bound passenger train had passed, when he crossed the first track and looked to the east, not expecting that another train would be coming from the west. When he turned and looked toward the west he saw a freight train about three feet from him and was immediately struck by what he thinks was the pilot of the engine. There is considerable dispute in the testimony as to whether it was a freight train or a passenger train that struck the plaintiff and also some dispute as to the hour at which the accident occurred. We do not deem it necessary to enter upon an elaborate discussion of the testimony, as the trial judge, in his charge, presented the issues to the jury in a careful statement and submitted all questions of fact to them for decision. It is a matter of no importance that an appellate court might possibly reach a different conclusion upon some of the questions in dispute. The fact remains that the jury were fully justified in finding that at about the hour of noon on a clear day in April a train belonging to the defendant ran over the legs of the plaintiff without giving him notice of its approach either by bell or whistle and that the accident occurred on a four-track road at a point where for many years there had been a railroad crossing which had been notoriously used by people in the vicinity with the full knowledge of the defendant. The defendant argues that the motions made for the direction of a verdict at the end of the plaintiff's case, and again at the close of the evidence should have been granted. These motions are based on the proposition that the defendant was guilty of no negligence and that it appeared affirmatively that the plaintiff was guilty of contributory negligence. The defendant cites numerous cases to establish the proposition that the defendant was not at fault for having failed to fence its tracks at Thompson avenue. We do not understand that the case for the plaintiff rests upon the proposition that the defendant should have fenced the crossing, but upon the ground that having by long acquiescence permitted it to be used by a large number of people and knowing that it was so used, it should have exercised greater care in watching the tracks and giving notice by proper signals of the approach of its trains. We do not understand that full compliance with the state statutes is the only duty which a railroad owes the public lawfully upon its tracks. Let it be assumed that everything which the state law required was done at the Thompson avenue crossing. It certainly will not be contended that such compliance permitted the defendant to run over a child at that point if due diligence and care could have prevented it.

The law applicable to such a situation was forcibly stated by Judge Gilbert as follows:

'Neglect on the part of the person in charge of the engine to use ordinary care to avoid injuring a person on the track, is in contemplation of law, equivalent to intentional mischief. He has no more right to run over a person, lawfully or unlawfully, rightfully or wrongfully, on the track, if he can, by the exercise of ordinary care, avoid doing so, than he has to shoot him. * * * Adults may be reasonably expected to take notice of the signals and warnings, and remove themselves out of danger, and if they do not, and if an accident eventually happens, no liability against the company will ensue. But, for obvious reasons, in

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