William Nolan v. N.Y. & N. H. R. Co.

• Decision Date: 25 January 1886
• Citation: 53 Conn. 461,4 A. 106
• Court: Connecticut Supreme Court
• Parties: WILLIAM NOLAN v. NEW YORK & N. H. R. CO. JOHN NOLAN, Adm'r, v. SAME.

4 A. 106

53 Conn. 461

WILLIAM NOLAN

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

JOHN NOLAN, Adm'r,

v. SAME.

Supreme Court of Errors of Connecticut.

January 25, 1886.

Robert E. De Forest, for John Nolan.

G. H. Watrous, H. S. Sanford, and M. W. Seymour, for defendant.

CARPENTER, J. The facts common to both cases are briefly these: Daniel and Willie Nolan were children of John and Mary Nolan, and lived with their parents at Bridgeport. They were ordinarily intelligent, and had the use of all their faculties. East Main street, in said Bridgeport, crosses the defendant's double-track railroad at nearly right angles. East Washington street, on the north of said tracks, for about 200 feet west of said crossing, lies along-side of said tracks, while Crescent avenue, on the south of said tracks, lies along-side for a much greater distance westward. West of said crossing said tracks lie nearly level with the surface of said Crescent avenue for the entire distance. On the north, towards East Washington street, there rises a bank, which, at the place of the accident, was about five and one-half feet high above the railroad gutter. The slope of said bank is wholly within the limits of the right of way of the railroad company; that right extending some six feet further north than the crest of said bank. The crest is level with the surface of East Washington street. This locality is a thickly-populated district of said city, and all parts of said right of way lying contiguously to said streets were, at the time of the accident, and for many years prior thereto had been, very largely and generally used by the public for passing and repassing on foot at pleasure and in all directions. The defendant was at all times familiar with such use. The two children who were injured had lived in this vicinity for some time, and were familiar with said public use of said right of way. There was and had been no fence or other barrier or obstruction, except said bank and the ordinary railroad gutter between said railroad tracks and said street and avenue.

The place of the accident is about 150 feet west of East Main street crossing. On the fifteenth day of October, 1880, the mother sent the two children to a drug-store to make a small purchase, directing them to hurry home. They went directly to the store, crossing said railroad at East Main street crossing, made the purchase, and started to return home, when their attention was drawn to some other children a little west of the drug-store at or near the crest of said bank, and on or near the right of way of the defendant. Thereupon they crossed the street, and joined said other children, and remained standing there a minute or two, doing nothing except to speak to the other children. At this time the express train from New York was due, and came from the west on the south track, giving the usual signals. The train from New Haven was due, and came from the east on the north track. The rear car of the east-bound train crossed East Main street as the engine of the westbound train came to said crossing. The attention of these two children was attracted and fixed upon the train from the west; and just after it bad passed the place of the accident, Willie started to go home diagonally across said railroad track and right of way, and ran down the slope of said bank. Daniel immediately followed Willie, running down said bank, but a little to the east of Willie. The children had not quite reached the north rail of the north track when the piston band on the hunter of the engine of said train from the east struck Daniel, inflicting such injuries that he died from the effects thereof four days thereafter. Willie was struck either by some part of said engine, or Daniel was, by force of the blow given him, thrown violently against Willie. Willie was seriously injured. The engineer of the train from New Haven gave the usual and ordinary signals, and no negligence in that regard is complained of.

The place of the accident was not at any regular street crossing, but was about 150 feet west of East Main street. There is a considerable curve in the tracks, which concave southerly, easterly from the place of the accident, for some 600 or more feet.

The engineer, as he approached East Main street crossing, stepped from the north side of the engine, over to the south side, to watch said crossing for persons coming from the south, as his engine was coming to and about to cross said highway just as or immediately after the rear of the train from New York was passing or had passed over said crossing. For this purpose he remained on the south side of his engine until he got to the crossing, when he returned to the north side, and then saw the boys running down the bank. No complaint is made that he did not then do all that was possible to be done to avoid the accident.

The finding continues as follows:

"I find that neither of said children had their attention drawn to the train from New Haven. They did not see nor hear it, nor know of its approach, until immediately before the accident, nor until it was impossible for them to avoid the collision; and I am not able to find whether they knew of the approach of the train from New Haven until they were struck "

The train was moving about 18 miles an hour. At that time about 52 trains passed the place of the accident during each 24 hours.

Upon these facts the court below held that the defendant was liable to Daniel for nominal damages only, and to Willie for substantial damages. The plaintiff appealed in the former case, and the defendant in the latter.

Two questions arise in each case: Was the defendant guilty of negligence? Was the plaintiff guilty of contributory negligence? The court below held that the defendant was negligent, and also that Daniel was guilty of contributory negligence, and that Willie was not.

The finding as to negligence, so far as it is a question of fact, cannot be reviewed by this court; so far as it is a question of law, it can be. It becomes important, therefore, to distinguish between law and fact. So far as the defendant is concerned, negligence may be defined to be a failure to perform some act required by law, or doing the act in an improper manner. The law determines the duty; the evidence shows whether the duty was performed. What duty rested upon the defendant? was a question of law. Was that duty properly performed? was a question of fact. If the court required of the defendant some act which the law did not require, it erred in a matter of law, and the question may be reviewed by this court. If the court simply found that the defendant failed to do some required act, that is a finding of fact, and cannot be reviewed. The main question here is a question of duty, and not a question of performance; and is therefore a question of law.

It would have simplified the case somewhat if the court had told us the specific duty or duties which the defendant failed to perform. As that was not done, we are required to consider the several duties suggested and claimed by counsel. What duty, therefore, did the law impose upon the defendant upon these facts?

In the first place, it required the engineer, after the position of the boys was discovered, to do all that could be done to prevent the accident. On this point the finding is explicit: "As soon as he could, the engineer gave two or three sharp whistle sounds, and with the other hand turned on the air-brakes. Everything possible was done to stop the train, and it was stopped as soon as it could be."

In the second place, it is claimed that the train should have been run at a much lower rate of speed. This claim, stated in another form, is that the defendant should have run its passenger train at this point very slowly, so that the public might safely use the railroad tracks and right of way, "passing and repassing on foot at pleasure and in all directions." We think the law imposed upon it no such duty.

In the third place, it is said that the track was so constructed, and the arrangement of the trains was such, that the attention of the engineer was required on the other side, so that there was no lookout to avert accidents on the side of the track where the accident happened; and this was negligence. The strength of this argument lies in the assumption that men, women, and children had a right at all times to be on the track at that place, and that it was the duty of the defendant's servants and employes to be upon the watch, and run its train so as not to interfere with the exercise of that right, or at least so as to prevent accidents. We recognize no such right in the public, and fail to discover that the defendant owed any such duty. At the East Main street crossing, people had a right to pass and repass, and the engineer might well anticipate the possibility of their being about to do so as the train approached, and to be on the watch so as to be prepared instantly to do everything possible to prevent a collision. It was necessary and lawful for people to cross the railroad at that point, using, of course, due care. On the other hand, it was unnecessary and unlawful for any one to be on the track at the place where these boys were injured. The first and principal duty of the engineer was to look out for people at the regular crossing. Doubtless some attention is due to possible wrong-doers, but not at the expense of others. An engineer must be diligent to see that the track is clear. Due diligence depends upon the circumstances of each case. These boys came suddenly and unexpectedly in the way of the train. It does not appear that the engineer could have discovered that they would do so any sooner than he did. There seems to have been no duty neglected by the engineer; and the defendant was under no obligation to locate its tracks, and adjust the running of its trains, so as to make it safe for persons unlawfully to trespass on its right of way.

In the fourth place, it is insisted...