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

• Decision Date: 16 April 1919
• Citation: 93 Conn. 438,106 A. 323
• Court: Connecticut Supreme Court
• Parties: WEIDLICH v. NEW YORK, N.H. & H. R. CO.

106 A. 323

93 Conn. 438

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

Supreme Court of Errors of Connecticut.

April 16, 1919

Appeal from Superior Court, Fairfield County; John P. Kellogg Judge.

Action by Frank Weidlich as administrator of the estate of Ernest C Weidlich, deceased, against the New York, New Haven &amp Hartford Railroad Company, for damages for personal injuries resulting in the death of plaintiff's intestate. From denial of motion to set aside a verdict for plaintiff for $10,000, and for error in the charge and in the finding defendant appeals. No error.

The plaintiff's intestate, Ernest C. Weidlich, was riding as a guest on the rear seat of a closed automobile, owned, controlled, and driven by his brother, who was seated on the front seat, when the engine of defendant railroad, at about 6:50 p. m., on January 23, 1918, hit the automobile at the grade crossing at North avenue, Bridgeport, and as a consequence of the collision Mr. Weidlich suffered injuries from which he died.

North avenue runs substantially northeast and southwest, and defendant's single track railroad runs north and south over North avenue, making a grade crossing. Double trolley car tracks were on North avenue over which cars were operated over this grade crossing. For a warning and a protection to travelers on this highway the railroad had for many years maintained at this crossing gates and a gate tender to operate them by hand. There were four arms of this gate, two on each side of the railroad. The southeast gate had been out of order for some time.

In addition there was evidence from which the jury might have found these facts:

The train was late, and the gate tender came on the job just before the accident, and did not know the train was late.

Just before the collision a trolley car coming from the northeast stopped on the easterly side of the crossing, and the conductor went ahead upon the railroad track, signaled to the motorman to cross, and the motorman thereupon drove his car across.

The gate tender heard the second whistle of the engineer when the engine was about 800 feet from the crossing, and he left his shanty alongside the track, signaled to the trolley car to pass from the east to the west, and did not lower the gates. The trolley car passed over the track, and following it came an automobile.

The gate tender could have seen the approaching engine when he went upon this crossing.

The occupants of the Weidlich automobile up to a point about 110 feet from the crossing could not have seen the approaching train. And at 110 feet the trolley car and the automobile would have completely obstructed the view, and this obstruction would have continued up to a point 20 feet from the crossing.

When the Weidlich automobile was within 20 feet of the crossing it was traveling at the rate of 15 miles an hour, while the train was traveling at the rate of 25 miles an hour, and was about 100 feet from this crossing.

James W. Carpenter and Paul Somers, both of New Haven, for appellant.

William H. Comley, Jr., of Bridgeport, for appellee.

WHEELER, J.

The corrections of the finding made the subject of the appeal are without merit. Paragraph 15 of the statement of facts, claimed in evidence by plaintiff, may be supported upon the gate tender's statement of what he saw and heard and did.

Paragraph 23, as to the view of the approaching train, is supported by inferences which may reasonably be drawn from the testimony of the engineer, Burns.

Paragraph 6, as to the freedom from negligence of the plaintiff's intestate, was a conclusion which the trier might reasonably have made from all the facts and circumstances in the case.

The corrections asked did not justify the printing of the evidence.

The motion to set aside the verdict could not prevail if the finding of the intestate's due care stands.

The failure of the gate tender to lower the gates or to give adequate warning of the approach of the train amply justified a finding of negligence on the part of the gate tender.

The intestate was a guest in the automobile; he had no control over the driver, and no authority to direct him. He was not responsible for the negligence of the driver of the automobile, had there been such. Sampson v. Wilson, 89 Conn. 707, 96 A. 163.

The intestate must exercise due care, but this is the care that may be reasonably inferred from the circumstances.

The guest on the rear seat of the automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him he must warn the driver of, and for his failure to do so be chargeable with having proximately contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning.

The defendant argues at length that the plaintiff offered no proof to show that his intestate used any care whatsoever in approaching this crossing, nothing to indicate whether he was then dead or alive, asleep or awake.

The intestate was seen a few moments before the accident, and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or engrossed in talk with another than the driver, or in deep thought, he would not have been, because of this, negligent.

Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest on the rear seat of an automobile.

No duty was upon the intestate to explain, excuse, or justify his course.

There is no presumption, the defendants say, that this intestate...