Dyson v. New York & New England Railroad , 57 Conn. 9 ( 1888 )

Beardsley, J.

The Superior Court finds that the collision which caused the death of the intestate was produced by the negligence of the defendant company, and has detailed the facts, and presumably all the material facts, upon which it formed that conclusion.

The question presented by the second assignment of errors is, whether these facts are legally sufficient to justify the finding of negligence. Such negligence is found to consist of a violation of duty by the defendant in three particulars.—First, in running its train at so high a rate of speed over the crossing in question;—second, in not protecting the crossing by a flagman, gates or some danger signal other than those which were employed; and, third, that the fireman on the train was negligent in not calling the attention of the engineer to the approaching omnibus.

Was the defendant company negligent by reason of the rate of speed which was maintained at the crossing? The crossing is just within the limits of the city of New Britain, and the highway which forms it is much traveled, but we infer from the finding, and especially from the photographic sketches of the locality, that it was not surrounded by a thickly settled neighborhood. The train in question was running at a rate of speed which, though high, cannot at the present day be regarded as excessive for a fast passenger train, and we infer, from the finding that trains “ customarily run over the crossing at a high rate of speed,” that it was not unusual.

The city of New Britain had made no order limiting the speed of trains at the crossing, though authorized by its charter to do so.

We think that the court below erred in its conclusion that it was the legal duty of the defendant company to slacken the speed of its train. As a general rule negligence cannot be inferred from speed alone. In the case of Warner v. N. York Central R. R. Co., 44 N. York, 465, the law is thus stated:—“ The law places no restrictions upon the rate of speed at which trains may be run across the country, at the crossings of highways or elsewhere; nor is the train required to stop or reduce its speed at such places, * * * nor does the law subject the company to liability to damages occasioned by the rate of speed if the signals required by law are observed.” To the same effect are Telfer v. Northern R. R. Co., 30 N. Jer. Law, 188, 192; Chicago, Burl. & Quincy R. R. Co. v. Lee, 68 Ill., 576; Same v. Harwood, 80 Ill., 88; Grows v. Maine Central R. R. Co., 67 Maine, 100.

It is found that the crossing was especially dangerous. It was undoubtedly so as compared with those where the traveler upon the highway has a continuous view of the approaching train for a considerable distance. The fact that the view was intercepted for the distance of two hundred feet on the highway until the approaching train was within twenty feet of the crossing, and that the railroad curved as it approached the crossing, were elements of danger to the traveler upon the highway.

The habits of men are such that all crossings of highways by railroads at grade are practically dangerous, and it is the policy of the state to abolish them as fast as is practicable. The danger arises mainly from the forgetfulness of the railroad employees or the inattention or temerity of the traveler upon the highway.

This danger is obviously diminished where the conditions are such that the traveler is not required to rely upon the danger signals, but can see the approaching train in time to avoid it, and the engineer can see an object at the crossing in time to effectually reduce the speed of his train before reaching it. But such conditions are hardly the more common ones at railroad crossings in this state.

In many, if not in most cases, the traveler must rely for his safety upon the danger signals. In the present case they were given as required by the statute, and so far as appears there was nothing to materially obstruct their sound. The cuts from four to seven and a half feet high, through which the train ran as it approached the crossing, could hardly have this effect, as in ordinary locomotives the whistle and bell are higher than that from the track. The highway was much traveled by inhabitants of New Britain and adjoining towns. It seems highly probable that if a diminished speed at this crossing was essential to the safety of travelers in the exercise of due caution, the city of New Britain would have demanded it.

A rule requiring trains to so reduce their speed before coming in view of all crossings where the conditions are similar to those of this one, as to avoid collision with an object at or near the crossing, would seriously incommode the public and be unnecessary for travelers exercising proper care.

Doubtless in some eases the company might be liable for the neglect of the engineer to slacken the speed of his train if by doing so he might have avoided a collision; as if he was informed that a person was approaching a crossing in such a condition or under such circumstances as to indicate that he was heedless of the danger signals, as if other sounds were prevailing, as of a thunder storm, which might render the sound of the signals indistinguishable. In such cases the company might properly be charged with the consequences of the personal negligence of the engineer.

Nor do we think that the defendant was guilty of negligence in not providing ac the crossing additional signals to those required by statute. In this state the legislature has assumed the regulation of this matter by providing specifically what signals shall be given of the approach of trains to crossings, and by instructing the railroad commissioners to require other signals at crossings when they shall deem them necessary for the protection of the public. This legislation is exhaustive and defines the whole duty of railroad companies in the matter to. which it relates. Weber v. N. York Central R. R. Co., 58 N. York, 451; Pakalinsky v. Same, 82 id., 424; State ex rel. Foy v. Phila., Wilm. & Baltimore R. R. Co., 47 Maryl., 76; Haas v. Grand Rapids & Indiana R. R. Co., 47 Mich., 401; Cliff v. Midland Railway Co., L. R., 5 Queen’s Bench, 264.

Nor do we think that upon the facts found the company should be held liable because the fireman did not sooner tell the engineer of the approach of the omnibus. No general duty rests upon the engineer in respect to a traveler whom he sees approaching the crossing, and of course none upon the fireman. Ordinarily he has a right to assume that he will regard the signals if they have been given, and is only called upon to act when the traveler is so near the crossing as naturally to startle him by a sense of danger. The distance of the omnibus from the crossing when seen by the fireman is not found distinctly, but the inference from the finding is that it was at least two hundred feet, as it is found that for that distance the intestate could not see the train until he came to the company’s right of way and the engineer from his post on the locomotive could not see the omnibus. If this inference is the correct one the lad must have driven rapidly from that point to the crossing, to have met the train, which was about six hundred feet from the crossing when the fireman saw the omnibus—much more rapidly than he was driving when he started or when he was last seen. But if the horses were driven for the two hundred feet at the same rate as when seen by the witnesses, the probable distance of the omnibus from the crossing when the fireman saw it was about eighty feet. If this was so, we cannot say that he was in fault in not instantly calling the attention of the engineer to it. It is not unusual for prudent persons driving horses accustomed. to trains, to approach as near as or nearer than this to crossings when a train is about to pass.

This view of the case renders it unnecessary to consider the other questions presented by the assignment of errors.

We refer however to the objection made by the defendant to the photographic sketches offered in evidence by the plaintiff, as it presents a question of evidence which has not hitherto been passed upon by this court. The court properly overruled the objection. The pictures represented the crossing in question and its surroundings, and presumably the court below found that it was a correct representation of them ; the change in the appearance of the locality made by the falling of the leaves from the trees was of course open to explanation. Marcy v. Barnes, 16 Gray, 161; Randall v. Chase, 133 Mass., 210; Ruloff v. The People, 45 N. York, 213; Church v. City of Milwaukee, 31 Wis., 512; Abbott’s Trial Evidence, 102.

There was error in the judgment appealed from and it is reversed.

In this opinion the other judges concurred.