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

• Decision Date: 01 March 1923
• Citation: Ulrich v. New York, N.H. & H. R. Co., 119 A. 890, 98 Conn. 567 (Conn. 1923)
• Parties: ULRICH v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

119 A. 890

98 Conn. 567

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

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, Fairfield County; Christopher L. Avery Judge.

Action by Julius Ulrich, administrator, against the New York, New Haven & Hartford Railroad Company.Judgment for defendant and plaintiff appeals.Error and new trial ordered.

Robert R. Rosan, of Bridgeport, for appellant.

James W. Carpenter, of New Haven, for appellee.

PER CURIAM.

The appellant claimed to have proved that his decedent suffered injuries resulting in her death through the appellee's train running into an automobile in which she was riding as a passenger while it was passing over the planked railroad crossing upon a roadway in Stamford called Miller street that the collision was caused by the appellee's negligence in failing to give any warning of the train's approach and in operating the train at a high and dangerous speed, and that at this time the decedent was in the exercise of reasonable care.

Upon the appellee's motion the court directed a verdict for the appellee, and the appeal is from this ruling.The appellee's motion was based on two grounds: (1) That Miller street was a private crossing, and therefore the appellee owed the decedent no affirmative duty while she was upon the crossing; (2) that the only reasonable inference upon the evidence was that the appellant had failed to prove the appellee's negligence.

The court, in directing a verdict, instructed the jury that upon the evidence reasonable men could not reach the conclusion that the decedent suffered her injuries through the breach of any duty which the defendant owed to her.Whether Miller street was a public highway or a private road and the crossing belonged to the appellee, it owed to all crossing it the duty of using reasonable care so as to avoid injury to them since this crossing had been used generally by the public for a long time without objection by it, and without notice to such users other than the maintenance of a sign at the crossing reading, " Private Way, No Thoroughfare, Use by Public Prohibited."

Our rule of law as to such a crossing over a private road is thus stated in Pomponio v. New York, N.H. & H. R. Co.,66 Conn. 541, 34 A. 495, 32 L.R.A. 530, 50 Am.St.Rep. 124:

" Under these circumstancesthe defendant was clearly charged with the duty to use reasonable care towards those using this crossing, whether they used it under a license or under an implied invitation; a care proportionate to the danger to be reasonably anticipated from the act done, and reasonably adequate under the circumstances to prevent injury from that act to those who at that time would probably be rightfully using the crossing."

The issue of negligence was dependent upon the conclusion that the speed was an unreasonable one, and that due warning was not given of the approach of the...