72 A. 727 | Conn. | 1909
The plaintiff's evidence presented this case: —
The intestate, while driving, in the town where he had long resided, on the highway at a point where it was crossed at grade by the defendant's railroad, was struck and killed by a train consisting of two cars and a locomotive with its tender. The train had just come around a curve, and was going at a speed of some thirty miles an hour, headed by the tender. The crossing was a dangerous one. The view of the track to one driving toward it on the highway was obstructed by a hill and a bank wall between the track and the highway, extending back from a point near the crossing for several rods along the highway. One approaching the crossing in the direction in which the intestate was going could not see any considerable distance up the track on which the train was being run, until he was some twenty-five or thirty feet from it. The hill also, if the wind is from a certain quarter, often prevents one in the highway near it from hearing the locomotive whistle, when sounded on an approaching train.
The intestate was driving a light wagon at a speed of five to seven miles an hour, and when his horse's head was two or three feet from the track first observed the approaching train. He then tried to pull up the horse, but a *144 collision was inevitable, and he was instantly killed. When he was from thirty to sixty feet from the track, two men sitting by the road side heard the rumble of the coming train, and called to him to stop. He turned to them with a bow and smile, apparently not understanding what they said, and did not slacken speed.
The signals by bell or whistle of the approach of the train, required by General Statutes, § 3787, were not given.
Assuming the facts to be as thus stated, negligence on the part of the defendant was established; but the burden which lay on the plaintiff of proving the absence of contributory negligence on the part of her intestate was plainly not satisfied. Morse v. Consolidated Ry. Co.,
The question is not that which might be presented on a hearing in damages after a default, as in Norris v. NewYork, N. H. H.R. Co.,
It is also further assigned as error that the Superior Court denied a motion of the plaintiff to state the evidence which she had produced, for the purposes of the appeal. Subsequently it did state it. The reason for denying the motion is not given in the record. It could properly have been denied if the appellant failed to furnish the court, at her own expense, with a statement of such evidence. We infer from her brief that such was the case, and such is also the fair presumption in support of the judgment. Whether, therefore, had a statement of the evidence been furnished to the court, in connection with the motion, its denial could have been assigned for error, there is no occasion to consider. Lord v. Lamonte,
There is no error.
In this opinion the other judges concurred.