Tessmer v. New York, New Haven & Hartford Railroad

Torrance, J. The material facts found may be summarized as follows: The Ward street crossing, where the accident occurred, is in a populous part of the borough, and is quite largely used for public travel in teams and on foot. It crosses *209 the railroad at right angles, over two main tracks and two> side tracks easterly of the main tracks. On the west side of the main tracks are two side tracks reaching from the Qninnipiac crossing next north of Ward street to within a short distance north of Ward street. At the northwest corner of the Ward street crossing and the defendant’s location, and close to the westernmost of the two last mentioned side trades, is a large building used as a feed store. By reason of fences and buildings in the neighborhood of the crossing, a person approaching it .from the west is, for several hundred feet, and until he passes the corner of the feed store and is within thirty feet of the west main track, unable to see 'any portion of the main tracks north of the crossing, or to hear the approach of a train from the north, or the sound of its bell, or even its whistle at the Ward street crossing whistling post, unless the wind is favorable. At the time of the accident a box freight car, as was frequently the case, stood in front of the feed store not many feet from the end of the west siding. This car shut off all sight of the tracks north of the crossing, to one approaching the crossing from the west, until he had arrived within twenty feet of the west main track, where about two hundred feet of the main tracks north of the crossing could be seen. Warning signs as required by law were maintained at the crossing, but no gates nor electric signals, no flagman nor other special safeguards were there at this time, nor have any such special safeguards been ordered by the railroad commissioners to be kept there. The crossing was “ otherwise in good structural condition.” These facts made the crossing a dangerous one, and were well known to the defendant and to its officers and servants on the train at the time of the accident. The train was a south-bound fast express, not stopping- at Wallingford, and passing through the borough at the rate of about fifty miles an hour. The locomotive whistle was sounded and its bell rung for the Ward street crossing, as-required by the statute. *210 At the time of the accident it was light, the weather was clear, and a light wind was blowing from the south. Upon the facts found the trial court reached the conclusion that the negligence of the defendant directly caused the death of the plaintiff's intestate. This negligence is specifically found to consist in its failure, under the circumstances disclosed by the finding, to keep the whistle “ constantly ” sounding between the whistling post and the crossing. -That this failure is the only act of negligence found, and the only one upon which the judgment is based, is quite apparent from the finding. Negligence in respect to all other matters is negatived by the finding. The train was running at a lawful and customary rate of speed, the crossing signals were given, and warning signs were up at the crossing, as required by statute, and the crossing “ structurally ” was in good condition. It is expressly found that the defendant was not negligent in failing to keep at the crossing certain special statutory safeguards, and upon the facts found no other conclusion upon this point was permissible. Dyson v. New York & N. E. R. Co., 57 Conn. 9, 23. After the engineer saw the team he did all that lay in his power by way of warning or otherwise to avoid the collision and to mitigate its effects. In short, it is found that the only thing, at this time and place, constituting negligence on the part of the defendant, was the failure of the engineer to keep the whistle sounding from the whistling post to the crossing. The plain inference from the finding is, that if this had been done, all the other facts found remaining the same, the conclusion reached by the trial court as to the negligence of the defendant would have been the other way. In reaching its conclusion the court held, as matter of law, that a specific duty rested upon the defendant to keep the whistle sounding from the post to the crossing; and one of the important questions in the case is whether any such duty rested upon the defendant. If it did, the conclusion in question is right, for it is clear that the defendant performed no such duty; if no such duty rested on it, the eonelusion is wrong, for it rests wholly upon the failure to perform this specific duty. *211 We are of opinion that no such duty rested upon the defendant. The negligence for which the defendant was held responsible by the trial court was the negligence of its servant, the engineer, in failing to give the crossing signals as required by law. If he was not negligent in that behalf, it follows that the defendant was not negligent. The question, then, is whether the law imposed upon the engineer the duty to beep the whistle sounding in the manner required by the trial court. The law imposes upon the engineer of a train, about to pass over a public grade-crossing, the duty to give certain warning signals, and a negligent failure on his part to perform that duty may subject him to grievous liability both civil and criminal. He has to perform this duty under circumstances which leave but little time for thought and reflection. For these reasons the law, as far as is possible, should make his duty plain and clear, to the end that he may know precisely what is required of him. The permanent conditions which detract from the effectiveness of the signals given, will vary with the location and surroundings of the crossing; and the temporary conditions, atmospheric or otherwise, having the same effect, will greatly vary from time to time; but the duty of the engineer ought not to vary to suit these varying conditions. Bailey v. Hartford & C. V. R. Co., 56 Conn. 444, 460. The duty of the engineer, with respect to the giving of grade-crossing signals, ban only be made plain and clear by statute, and accordingly the legislature has by statute defined what he shall do in that behalf, and the manner of doing it. The statute (§ 3553) provides, in effect, that the engine shall have attached to it a bell of a prescribed weight, and a suitable steam whistle, both to be in good working order. It further provides (§ 3554), in effect, that the engineer shall commence sounding the bell or steam whistle when the engine shall be approaching and within eighty rods of any public crossing, and shall keep the bell or whistle occasionally sounding until the engine has passed the crossing. It further provides (§ 3557), in effect, that before the engineer is permitted to drive any engine upon a railroad, he shall be furnished with a printed copy of the sections which define *212 his duty as to grade-crossing signals, and that he shall make oath that he will faithfully comply with their provisions. The practical construction put upon § 8554 has been the common sense one, that the whistle shall be sounded at the eighty rod point and the bell shall be rung thereafter until the engine passes the crossing. Bates v. New York & N. E. R. Co., 60 Conn. 259, 266. We think § 3554, as thus con-' strued, prescribes and defines the entire duty of the engineer with respect to the signals to be given by him, under all ordinary circumstances, when his engine is approaching and is about to pass over a public grade-crossing. There may be in some cases of this kind special facts and circumstances which, if known to the engineer, would require him to do more than comply with the provisions of § 3554, but these cases will be exceptional and rare, and they are such as cannot from their very nature be provided for by statute. Some of these exceptional cases, where more than literal compliance with the statute might be required of the engineer, are suggested in the opinion in the case of Dyson v. New York, & N. E. R. Co., 57 Conn. 9, 22, and others readily suggest themselves. Outside of such exceptional cases, however, the engineer who complies with the statute performs his entire duty with regard to warning 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 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.” Dyson v. New Yorh & N E. R. Co., supra, p. 23. In the case at bar it is found that the engineer fully complied with the requirements of the statutes as to signals, and, after he saw the team, did all he could to avoid the collision; and this being so we think the engineer performed his full duty towards the intestate and should not be charged with negligence. There is nothing in the special facts and circumstances *213 found which, should make this case an exception to the general rule. It is found that the presence of the box car, in front of the feed store, made the crossing, on the day in question, to the intestate and her mother, a specially dangerous one because it hindered or wholly prevented them from seeing or hearing the approaching train; but it is not found that the engineer knew that the box car was there, although he knew one was there frequently. But if we concede that he knew that one was there at the time of the accident, we think his duty did not vary with the presence or absence of the car at that point. It is also found that owing to the existence of fences, buildings and ears at and about this crossing, persons in the position of the intestate and her mother could not hear the signals when the wind was unfavorable; but it is not found specifically that the wind was so unfavorable, at the time in question, that the signals could not be heard at that point, or that the engineer knew this. It is only found that a light southerly wind was blowing, and that the intestate and her mother, though attentive, did not hear the signals till they passed the box car. These are the main facts relied upon to take the case out of the general rule, and they are not sufficient for that purpose. We are of opinion that the facts relied upon did not impose upon the engineer the additional duty which the court required of him. In this view of the case it is unnecessary to pass upon the other errors assigned. There is error, the judgment of the Superior Court is set aside and the case remanded for the assessment of nominal damages. In this opinion the other judges concurred, except Hamersley, J., who dissented.