130 A. 102 | Conn. | 1925
Upon the trial the plaintiffs offered evidence to prove these facts: The plaintiff Rogers, a resident of Saybrook, was employed by Pratt, Read and Company at Deep River. As a part of the wages paid their employees, the Company transported by motor bus its employees, including Rogers, from their homes to its place of business. The defendant operated a railroad from Saybrook Point to Saybrook Junction, and thence to Hartford as a common carrier of passengers and merchandise in cars drawn by engines propelled by steam. A short distance south of the station at Saybrook Junction the old Boston Post Road, a main public highway between Boston and New York, and much traveled, crossed at grade defendant's tracks. The crossing was a dangerous one and due care required a flagman, gates, electric signals, or some other suitable means to warn and protect persons using the crossing from approaching trains. On June 1st, 1920, Rogers entered at Saybrook this motor bus, with other employees *738 of Pratt, Read and Company, and occupied the rear seat while the side curtains of the bus were drawn thus preventing a view from the sides by the passengers. Three tracks of defendant crossed the Boston Post Road at this point, the first of which as the crossing is approached from the north is a curve known as a "Y," the other two tracks being straight. At the time the bus approached the crossing the defendant had caused and permitted a number of freight cars to stand upon the "Y" track in such a position that the driver of the bus, Merrill, could not see an approaching train upon either of these straight tracks. When the bus had crossed the first two of these tracks and had gotten on to the third track, a passenger train of defendant traveling at a great rate of speed and approaching from Saybrook Point to Saybrook Junction struck the bus and injured Rogers. Defendant gave no warning of the approach of the train by means of a whistle, bell or other device for signaling the approach of the train, or furnished any other adequate warning of the approach of the train. Rogers, the driver, Merrill, and the other occupants of the bus did not hear any whistle blown or any bell sounded on the train. The engineer of the train knew that this crossing was a dangerous and unprotected crossing and that more than ordinary care was required in the operation of trains over the crossing. Because the engineer could not see the approach of the bus, due to the obstruction of his vision by the freight cars on the "Y" track and a garage and other objects, he should have kept a vigilant outlook for travelers using such crossing and should have continuously rung the bell of the engine and blown its whistle even beyond the statutory requirements. The engineer was not keeping a lookout when approaching the crossing. The defendant negligently failed by means of a flagman, gates, electric signal, or other suitable *739 means at the crossing to warn persons, including Rogers, about to use the same, of approaching trains on its tracks. Rogers was in the exercise of reasonable care and had no control over the operation of the bus. The defendant knew, or ought to have known, of the approach of the bus, and could have avoided the injuries to Rogers if it had used reasonable care. Pratt, Read and Company paid to Rogers through its insurer carrier, the Royal Indemnity Company, $4,836.44, being the compensation awarded him by the compensation commissioner.
The errors assigned are certain instructions of the court and rulings upon evidence. The complaint alleged and plaintiffs' evidence tended to prove some seven or more acts of negligence. These the court detailed in his charge as "(1) great speed; (2) negligently failed to keep a proper lookout on said engine; (3) negligently failed to sound the whistle; (4) negligently failed to ring the bell; (5) negligently failed to give any timely and sufficient warning to the driver of the automobile; (6) negligently ran the locomotive into the automobile." A seventh ground, contained in paragraph five of the complaint, the court excluded from the consideration of the jury. Plaintiffs complain of the charge that, "the plaintiffs are required to prove all the material allegations of their complaint and this applies, not only to proof of the negligence, or the lack of contributory negligence, but to the injuries and damages suffered." "At no point in the charge," one of the plaintiffs' briefs says, "does the court refer to the rule that proof of one of many acts of negligence alleged in the complaint is sufficient to support a plaintiff's verdict." In four other places in the charge, the language is susceptible of the construction that it was essential for the jury to find proven all of the material allegations of the complaint as to negligence. Our rule *740
is undoubted: "`Where several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count and aver that they were the cause, and any one of them proved upon the trial will sustain his complaint.'" Ashborn v. Waterbury,
Error is assigned "in failing to charge the jury upon the subject of concurrent negligence as applied to the facts disclosed by the evidence." Neither in their complaints nor in their requests to charge had the plaintiffs claimed that the accident resulted from the concurrent negligence of defendant and Merrill, driver of the bus. Nor did the facts claimed to have been proven by the plaintiffs make it incumbent upon the court, of its own motion, to have instructed the jury as to the possibility of the claim. It does appear that defendant offered evidence to prove and claimed to have proved that the accident happened through the negligence of Merrill, the driver of the bus, but defendant, of course, was not making the claim that the accident happened through the concurrent negligence of it and the driver. While the facts claimed to have been proven would have made it possible for the plaintiffs to have made this claim, or for the court of its own motion to have presented it to the jury, we would be quite unwilling to hold the court in error, under the circumstances of this case, for failing to present to the jury a claim of law not made by the plaintiffs and not necessarily required by the evidence before the jury. *742
The defendant's train was approaching an admittedly unprotected and dangerous crossing. The plaintiffs offered evidence to prove that in approaching this crossing the engineer had taken his eye off the crossing and plaintiffs now claim that if this was necessary in the performance of his duty, he ought to have so reduced the speed of the train that he could give his undivided attention to this crossing. Plaintiffs claim that the court excluded from the consideration of the jury these facts as a basis for their finding that defendant was negligent in not reducing the speed of the train, and assign as error the court's failure to charge "that the engineer of said train had at the time he approached the crossing no greater duty than to keep a continuous and vigilant lookout for travelers upon the highway and for a failure to do this that the defendant would be guilty of negligence." Plaintiffs have failed to note the statement in the court's charge concerning the engineer's conduct in the particular criticised. It was upon this point complete and fair. "The conduct of the engineer as he approached the crossing should receive your careful consideration, in the light of the principles of law I have given you. He says that as he approached he glanced to the right and to the left. There was nothing on the track to obstruct his view. `I just glanced,' he said, as I remember his testimony, and then `took my eyes off for a few seconds to do my own duty. I have other duties, I had a bad crossing ahead, a main line crossing, and a station.' Considering the fact that he was approaching a grade-crossing over the Boston Post Road, a much traveled highway, although remembering it was early in the morning, the crossing not being protected by gates or flagman or bell, was it the conduct of a reasonably prudent engineer under the circumstances to glance at the crossing and then take his attention off the crossing *743 and confine it to other duties in connection with the handling of the train, some of those duties being in connection with the operation of the train as to purely railroad operating difficulties beyond the Post Road crossing? This is a question, and an important question, asked by the plaintiff. . . . It is a question of fact for you to determine, whether he was keeping a reasonable lookout or not, under the circumstances." The criticism of the charge likewise has failed to note the court's instruction as to the legal duty of the engineer, which was unexceptionable. "It was the duty of the engineer to have operated his train as a reasonably prudent engineer, skilled in the business, would have operated an engine under like circumstances. In this case the engineer owed the duty of keeping a reasonable outlook, which in that connection meant a vigilant outlook, for travelers upon the highway, at or near the crossing so as to avoid injury to them, and if the railroad failed to perform its duty, its liability is the same whether it saw or might have seen the person in time, by the exercise of reasonable care, so as to have avoided the injury. . . . If you find that the automobile was in peril and the engineer knew, or ought to have known it, then reasonable care required him to use every precaution to avoid the injury to the automobile and its passengers which a reasonably prudent person similarly situated would use. If a reasonably prudent person would have, under these circumstances, blown the whistle again, or checked the speed or stopped the train, it was incumbent upon the engineer to have done this; and if by so doing the injury to the plaintiff Rogers would not have occurred, the defendant is liable, unless Rogers' own negligence thereafter essentially contributed to his injuries."
The plaintiffs offered evidence tending to prove that the award of the compensation commissioner was paid *744 to Rogers by the insurer of Pratt, Read and Company, and claimed that under these circumstances the jury should have been instructed that the payment to Rogers was not made by the insurer, but made for and in behalf of this Company, and that, in the event of a plaintiffs' verdict, Pratt, Read and Company and not the insurer would recover damages. The court clearly instructed the jury that Pratt, Read and Company, as the employer of Rogers, became bound by the award of the commissioner, and had paid this to Rogers, but that the fact of their having done so did not have anything to do with the question whether this defendant is liable in damages for the injury suffered by Rogers. Further that under General Statutes, § 5346, as amended by § 2 of Chapter 306 of the Public Acts of 1921, any damages recovered by Rogers in this action would be applied first to the payment of Pratt, Read and Company for the award paid by them, and Rogers would retain the balance. This instruction was all that plaintiffs were entitled to; in no event was the court bound to instruct the jury as to the relation existing between the insurer and Pratt, Read and Company.
Under the fourth and fifth assignments of error the plaintiffs complain that the court charged the jury that they could not find the defendant guilty of negligence by reason of there being no gates, flagmen, electric signals, bells or any other form of protection at this crossing, since the legislature had not imposed this duty upon the defendant. The court charged: "Paragraph five alleges that the defendant negligently failed by means of a flagman, gates, electric signals or other suitable means at said crossing to warn persons of approaching trains. Now, it is admitted, gentlemen, that there were no gates, no flagman, no electric signals at said crossing. It is enough to say of this allegation of negligence that the railroad company had never been *745 required to maintain a flagman, or a gate, or a bell, there, and that therefore it was under no obligation to provide any, and the fact that it did not do so does not make it liable for negligence. I charge you that this was not negligence on the part of the railroad, in failing to provide these signals at the crossing. There was no duty on the defendant under the circumstances disclosed by the evidence to provide gates or a flagman or an electric signal at this crossing. The absence of a flagman at this crossing, and of a crossing signal, bell, or of gates, or of any other form of protection does not of itself constitute a ground of negligence for which the defendant can be held liable, for the special designation by the statute of the whistle and bell signals excluded any obligation of providing other signals. 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 Public Utilities Commission to require other signals at crossings when they shall deem them necessary for the protection of the public."
Again the court charges: "The only warning which he was obligated by statute to give was — (a) to sound the whistle or bell of the engine when it was approaching and within eighty rods of the crossing (b) to keep such bell or whistle occasionally sounding until the engine had crossed the highway. . . . The legislature has a right to determine what warnings of the approach of a train to the crossing should be given; and the giving of such statutory warning would be the limitation of the railroad's duty in the giving of such warning. The legislature has specifically provided what signals shall be given. This defines the whole duty of the railroad company as to signals of an approaching train under ordinary circumstances. There may be exceptional cases where something more than a literal *746 compliance with the statutory provisions may be required, and that is caused when, if special facts or circumstances are known to the engineer which require him, in the exercise of reasonable care, to do more than comply literally with these statutory provisions. This issue is a simple one; if the engineer or fireman did not blow the whistle or ring the bell as thus required, the defendant was negligent. This issue is a simple question of fact and is submitted to you as a question of fact under the evidence to decide."
Under this charge the court entirely eliminated the acts of negligence alleged in paragraph five of the complaint quoted above. It instructed the jury substantially in the language used in Dyson v. New York N.E. R. Co.,
In Bates v. New York N.E. R. Co.,
In Dundon v. New York, N. H. H.R. Co.,
In Tessmer v. New York, N. H. H.R. Co.,
We understand our law as to the duty of a railroad in the operation of its trains over a grade-crossing, toward a passenger on the train, to be to exercise the highest degree of care, but toward a traveler upon the highway about to cross the railroad, to be this: The railroad owes to the traveler the duty of exercising reasonable care, which increases in degree as the danger of the crossing to the traveler increases. Ordinary care, as in all other dangerous situations, may be great, or even very great, care. When the legislature has prescribed certain signals to be given by those operating the train before passing the grade-crossing, or has prescribed certain protection for the traveler, as by a flagman or gate, automatic signal or other device, these will in the ordinary case measure the duty of the reasonable care of the railroad to the traveler. But when the crossing is not the ordinary one, but is more than ordinarily dangerous by being much traveled, or by having the view of the track obstructed by the railroad or by others, or because of the noise making the ordinary signal difficult to hear, or by reason of a like cause, it *751 becomes a question of fact for the jury to determine, what, if any, additional signals or precautions should have been maintained by the railroad in the exercise of its duty of using reasonable care. When those to whom the legislature has delegated the authority of ordering, at a grade-crossing, a flagman, gate, or automatic signal or other device affording protection to the traveler crossing, have ordered certain means of protection at the crossing or refused to make such order after hearing, in the case of the more than ordinarily dangerous crossing, these are facts to be considered by the jury in determining what reasonable care required the railroad to do, but they are not conclusive. When those to whom the legislature has delegated the authority of ordering, at a grade-crossing, a flagman, gate, or automatic signal or other device, have failed to make any such order after hearing, no presumption can arise that reasonable care on the part of the railroad would not require such protection; the question is one of fact for the jury to determine whether, in the exercise of reasonable care, it was the duty of the railroad to have provided any such protection.
Grand Trunk Ry. Co. v. Ives,
Toward the conclusion of the charge of the trial court which we quoted, the court does say: "There may be exceptional cases where something more than a literal compliance with the statutory provisions may be required, and that is caused when, if special facts or circumstances are known to the engineer which require him, in the exercise of reasonable care, to do more than comply literally with these statutory provisions." The court obviously refers to the statutory signals by the engineer as to blowing the whistle or ringing the bell. It does not refer at all to the acts of negligence alleged in paragraph five of the complaint, the charge concerning which the appellant makes his fourth and fifth assignments of error. The instruction was inadequate, in that it gave the jury no idea of what special facts or circumstances in the case might be found by them to *753 take the case out of the ordinary and place it in the exceptional category requiring additional precautions in the exercise of reasonable care.
Other criticisms of the charge are either not well taken or too inconsequential to predicate harmful error upon. Rulings upon evidence are not erroneous except in one instance. Defendant's exhibit one, a map made by its engineer and representing the locus at the time of the accident, and containing a number of lines thereon representing lines of vision, was admitted in evidence over plaintiffs' objection and exception. The lines of vision had no place upon the map. It appears that they were testified to by the engineer. Placing them upon the map before it was introduced in evidence, gave them undue prominence over other oral testimony, since the map as an exhibit went to the jury room. The matter was one within the sound discretion of the court. Under the circumstances of this case its admission was not harmful error.
There is error and a new trial is ordered.
In this opinion the other judges concurred.