Whittlesey v. N.Y., N. H. & H. R. Co.

• Decision Date: 01 July 1904
• Citation: 58 A. 459,77 Conn. 100
• Court: Connecticut Supreme Court
• Parties: WHITTLESEY v. NEW YORK, N. H. & H. R. CO.

58 A. 459

77 Conn. 100

WHITTLESEY

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

Supreme Court of Errors of Connecticut.

July 1, 1904.

Appeal from Superior Court, New London County; George W. Wheeler, Judge.

Action by Charles B. Whittlesey, as administrator of Sylvester Sullivan, deceased, against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Charles B. Whittlesey, for appellant.

Walter C. Noyes, for appellee.

HALL, J. The plaintiff's intestate, Sylvester Sullivan, was employed by the defendant as a section hand in a gang of laborers, one of whom was a foreman, stationed on the line of defendant's railroad, and engaged in keeping the roadbed in repair. The foreman of the gang, one Dwyer, worked with the other laborers of the gang, kept their time, and, in the absence of the roadmaster, directed their work, but had no power to hire or discharge them, except in emergencies.' The roadmaster had the direction and supervision of the work done by section gangs in his division, and reported to the superintendent, who reported to the general officers of the company. It was the duty of the gang to report every morning at the station where the tools were, and where a hand car was kept for the use of the gang to transport themselves and their tools when their work was distant from the station; and the men thereafter became subject to the orders of their foreman, who directed when and how the hand car should be used, and, when upon it, directed how it should be operated. The train dispatcher did not control the running of hand cars. On the morning in question, while Sullivan and the other section hands were riding upon the hand car with the foreman, at the latter's order, and moving west toward the point on the road where they were to work that day, the hand car was struck by a freight train which came around a curve running in an opposite direction, and which, unknown to Dwyer, was that morning about 20 minutes behind its usual time of passing that point. The occupants of the car, upon seeing that a collision would occur, made every reasonable effort to escape injury, but Sullivan fell, and was run over by the freight train and killed. The court finds that reasonable care required that, when a hand car was running upon the track a man should be sent ahead with a flag to signal trains; that the car, which was a suitable one, was properly provided with flags for that purpose; and that the collision was caused by the negligence of Dwyer, who was a competent foreman, in not so protecting the hand car.

The argument of the plaintiff's brief seems to be that in sending out the hand car Dwyer was performing a duty similar to those of a train dispatcher, and therefore one which the company owed to its employés, as was held in Darrigan v. N. Y. & N. E. R. R. Co., 52 Conn. 285, 52 Am. Rep. 590, and that the defendant is consequently liable to the plaintiff for the negligence of Dwyer in ordering the hand ear started while the freight train was approaching from the opposite direction on the same track, or is liable because of its negligent...