Sprague v. N.Y. & N. E. R. Co.

• Decision Date: 01 December 1896
• Citation: 36 A. 791,68 Conn. 345
• Parties: SPRAGUE v. NEW YORK & N. E. R. CO.
• Court: Connecticut Supreme Court

36 A. 791

68 Conn. 345

SPRAGUE

v. NEW YORK & N. E. R. CO.

Supreme Court of Errors of Connecticut.

Dec. 1, 1896.

Appeal from superior court, Hartford county; Ralph Wheeler, Judge.

Action by Kate J. Sprague, administratrix, against the New York & New England Railroad Company. From a judgment in favor of plaintiff, defendant appeals. No error.

Edward D. Robbins and George A. Kellogg, for appellant.

Charles G. Root, for appellee.

FENN, J. This is an action by an administratrix to recover damages for an injury which caused the death of the intestate. The amended complaint alleged that the intestate, Gilbert A. Sprague, was on September 24, 1891, a brakeman in the employ of the defendant, and was then, lawfully and with due care, and in the regular course of his employment, proceeding on a train operated by the defendant, and running from Danbury towards Hawleyville; that on said day, while said Sprague was so proceeding on said train, the defendant carelessly and negligently caused and allowed another train to proceed and run from Hawleyville towards Danbury on the same track on which the said Sprague and the train whereon he was were then proceeding and running, and in a direction opposite to that in which said lastmentioned train was running; that a collision occurred, in which said Sprague was crushed and killed; that the said train running from Hawleyville to Danbury, which collided with the train on which said Sprague was, was in charge of one Conrad as conductor, with William Heeney as its engineer, —both employed in said capacities by the defendant; that both were incompetent to act in their respective capacities, which was well known to the defendant; that the negligence of the defendant consisted in carelessly and negligently causing and allowing said two trains to collide in the manner stated, and in employing said Conrad as conductor and said Heeney as engineer on said colliding train. The court, upon a hearing after demurrer overruled, assessed full damages, and rendered judgment accordingly.

From the detailed and careful finding of the trial court, it appears that the Injury complained of occurred in the manner and under the circumstances stated in the complaint. The engines of two railroad trains going in different directions on the defendant's single track railroad collided a little before 8 p. m., September 24, 1891, at a point between Hawleyville and Danbury, near Hobart's siding, about one mile west from Hawleyville and five miles east from Danbury. The intestate was a brakeman on the east-bound train, known as "No. 700,"—a first-class freight train. This train was scheduled on the time-card in force at that time to leave Danbury, going east, at 7:10 p. m., but left Danbury on that day at about 7:40 p. m., being about 30 minutes behind time. The same train was scheduled to leave Hobart at 7:40 p. m., to arrive at Hawleyville at 7:45 p. m., and to leave Hawleyville at 8:40 p. m. The train which collided with train No. 700 was known as "No. 67," and was a second-class freight train, on its way west from Hartford, scheduled on the time-card to leave Hawleyville at 3:55 p. m. On this day it left Hawleyville at about 7:30 p. m., being nearly four hours behind time. Train No. 67 had been delayed by waiting at stations for the passing of trains, both regular and irregular, which blocked the road. Some of the waiting at stations was upon special orders or messages from train dispatchers, issued and signed in the name of the superintendent. Train orders or messages from train dispatchers were frequent, and some of them directed the movements of this train. Some of the delays at stations appear to have been made by the conductor and the engineer in accordance with what they supposed were the rules of the company. Operators on the line kept dispatchers informed of the situation of trains. At Hawleyville, messages from dispatchers were received; but it does not appear what they were, and it is not found that there was any special order directing when the train should leave Hawleyville. Train No. 28, a first-class passenger train, was also scheduled on the time-card to leave Danbury, going east, at 7:10 p. m., the same time at which No. 700 was scheduled to leave, but was behind time, and left at about 7:25 p. m. A message was sent by a train dispatcher to the conductor of train No. 700, at Danbury, substantially as follows: "If no room at Danbury, go to Hobart's, ahead of train 28." There was room, however, and train No. 700 waited at Danbury till train No. 28 had left. Train No. 67 left Hawleyville upon the arrival there of train No. 28. Whether the fact of the sending of the above message to the conductor of train No. 700 was communicated to the conductor of train No. 67 did not appear from the testimony.

The time-table then in force for the government of employes upon said portion of the defendant's railroad was, as appeared on its face, in each upper corner thereof, "Timetable No. 48, to take effect Sunday, September 20th, 1891, at 12 o'clock noon, superseding time-table No. 47, dated May 10th, 1891." This time-table, No. 48, was made a part of the finding, and it may be said, in brief, that, as claimed by the defendant, it appears "so arranged, of such a nature, as to leave as little need as possible for any interference by the train dispatchers." No fault in that respect is, or, we think, could be, found. On the face of this time-card in force on September 24th was printed, in large, clear type, near the top of the sheet, the following: "For general instruction, see other side." On the other side of this time-card were plainly printed the following rules: "Rule 5. Trains on the road are in charge of the conductor, but engineers are equally responsible for the observance of running directions." "Rule 26. No train will proceed from one station towards another station, where it expects to meet a train having the right of track, unless it has ample time to arrive there by running at its usual speed. Rule 27. Regular first-class trains have the right to track over all other trains." "Rule 30. Second-class trains must be kept ten minutes off the time of regular first-class trains." "Rule 35. Whenever time-table time is mentioned in these rules, it means leaving time, and all trains will be considered due at the next point, where they are timed, Immediately after leaving time at the preceding station. Rule 36. Trains which are provided for by schedule must not move otherwise than in accordance with schedule rules, except upon a written or telegraphic order signed by the division superintendent, or person authorized by him to sign such orders. Trains which have not schedule rights must not occupy the main track on the time of trains having schedule rights, without a like order, excepting within the yard limits, and in accordance with the rules provided for their government."

E. B. Conrad was employed by defendant as the conductor, and William L. Heeney as the engineer, of train No. 67. At the time of leaving Hawleyville, both the conductor and engineer of train No. 67 were on the engine. The engineer, Heeney, asked the conductor, Conrad, to look at the time-card to see what time train No. 700 left Danbury. Conrad, looked at a time-card, and answered that there was time enough. Heeney did not look at his time-card. Conrad had never taken charge of any train on the defendant's road till he took charge of train No. 67, on the day of the collision, and that was the first service he had ever performed for the defendant. Division Superintendent R. B. Williams employed Conrad as conductor about 10 days prior to the day of the collision,—it being his duty, as superintendent, to employ conductors and engineers on his division,—under the following circumstances: About the 1st of September, the month of the collision, Williams wrote several letters to different superintendents, asking them to recommend to him some first-class single-track freight conductors. He received a letter from John Babcock, train master of the New York, Pennsylvania & Ohio Railroad, recommending Conrad as a first-class conductor. Conrad came to Williams also with a letter from Mr. Charles Howard, recommending him as a first-class conductor on a road in Ohio which Howard had operated. Williams gave Conrad some general examination, and gave him a letter to Train Master Russ for further examination on time-card and rules. Russ gave him some kind of an examination, but of what character is not stated. The time-card at that time in force was one issued in May,—not the one in force on September 24th. Conrad was given 10 days to learn the road, and was then ordered to run train No. 67 on September 24th. Conrad had not in fact learned the road when he reported for duty, and Engineer Heeney had to attend to certain duties of the conductor as well as his own. He did not know at what time train No. 700 was due to leave Danbury or Hobart. He was unfamiliar with the time-card (if, indeed, he had the proper one), with the application of the rules of the company (even if he had made any study of them or knew anything about them), and with the defendant's system of management of trains on that day, which was carried on partly by special orders, partly by messages, and partly upon the knowledge and judgment of conductors. He was entirely without any experience in the position he was in on the defendant's road, and was incompetent to discharge its duties. Engineer Heeney had been in the employ of the defendant a year as engineer, and for several years earlier as a fireman. Under the system of the company, its trains had no regular engineers; an engineer being assigned one day for one train, and on another day for another train. Heeney had not run train No. 67 for a month before the day of the collision, and had run the train but a few times altogether. He did not know the time at which train No. 700 was due to leave Danbury, and supposed that...