Hayes v. New York, New Haven & Hartford Railroad

Prentice, C. J. The complaint charges the defendant with negligent conduct causing personal injuries to the plaintiff’s intestate and nothing more, and avers the absence of contributory negligence on the part of the latter. The action is, therefore, one founded upon-negligence, and recovery upon any other ground was not permissible. Pitkin v. New York & N. E. R. Co., 64 Conn. 482, 490, 30 Atl. 772; Sharkey v. Skilton, 83 Conn. 503, 507, 77 Atl. 950. Plaintiff’s counsel do not claim otherwise. The only evidence tending to show negligence on the part of the defendant was that given on the plaintiff’s behalf, to the effect that the flagman stationed at the crossing, its employee, beckoned to Hayes as he approached the crossing to proceed. Although this testimony was denied by the defendant’s witnesses, the plaintiff was entitled to go to the jury upon the issue of the defendant’s negligence, and for our purpose we are required to assume that the invitation to cross was given as testified. The invitation thus given was one which Hayes had a right to rely upon to some extent, but not to such an *305 extent that he was thereby excused from making some use of his senses and taking some precautions for his safety. “A railroad crossing is . . . a dangerous place, and the man who knowing it to be a railroad crossing approaches it, is careless unless he approaches it as if it were dangerous.” Borglum v. New York, N. H. & H. R. Co., 90 Conn. 52, 55, 96 Atl. 174. One who is invited to cross by the conduct of the railroad company, or of its employees or agents, or even directly by such employee or agent, is not justified in acting as though it were not dangerous, and will not be permitted to throw off from himself all responsibility for the outcome. He is still bound to act with common prudence in view of the dangers of the place as well as of the invitation. Cottle v. New York, N. H. & H. R. Co., 82 Conn. 142, 144, 72 Atl. 727; Dundon v. New York, N. H. & H. R. Co., 67 Conn. 266, 272, 34 Atl. 1041; Ellis v. Boston & Maine Railroad, 169 Mass. 600, 602, 48 N. E. 839; Union Pacific R. Co. v. Rosewater, 84 C. C. A. 616, 619, 622, 157 Fed. Rep. 168, 171, 174. The question before the jury, on this aspect of the case, thus became resolved into one as to whether Hayes did exercise the common prudence of one who, cognizant of the dangerous conditions surrounding the crossing, had received an invitation from the flagman to cross. In this connection it is not without significance to observe that Hayes did not know that the man who beckoned to him was a flagman or employee of the company. He carried no flag, it is said, or other indication of his position or employment. All that Hayes knew was that the man was standing beside the crossing and was beckoning to him as he had to another car preceding his. This is not important as bearing upon the defendant’s responsibility for the acts of the flagman, but it does possess significance in judging of the measure of prudence characterizing Hayes’ conduct in relying *306 upon the signal of one who was a stranger to him and in throwing precaution to the winds. But that feature of the case may be dismissed, and full effect given to the signal of the flagman as a known servant of the company. The evidence, upon which the plaintiff relies and must rely for recovery, discloses that Hayes received the invitation when, with clutch out and brakes on, he was proceeding slowly, and with his car under full control, along the highway some one hundred and fifty feet from the crossing where his view of the tracks to the east was practically cut off, and that he thereupon, without further inquiry or means of information, released the brakes, threw in the clutch, applied the power and proceeded with ever increasing speed down the grade toward the crossing. His increase of speed was such that it went up from ten miles or less an hour to about twenty in the short intervening space traveled. There is no evidence tending to show that he looked or listened for the approaching train. The plain indications are that he did not look, else he would have seen it a sufficient distance from the crossing to have enabled him to stop in safety, unless, indeed, his speed was too great. When he had proceeded but half way to the crossing and was seventy feet from it he could have seen up the tracks one hundred and thirty feet, and the train must have been within that distance at the time. If not, there can be no question that it was in full view when Hayes reached the fifty foot point, where two hundred and sixty feet of the tracks could be plainly seen. Gilman saw the train before the siding was reached, and took measures of escape. Hayes may also have seen, but by reason of his speed either did not dare to attempt to stop or thought that he could succeed in crossing. As to this we may not know what the fact was: but one thing is certain, and that is that a reasonably careful approach at a moderate speed and with *307 the ear under proper control was all that was necessary for Hayes’ safety. The situation is explainable only upon one of four assumptions: (1) that he did not look; (2) that he was going so fast and had so little control of his car that he could not stop after, by looking, he was able to see the tracks; (3) that he both failed to look, and was going at too great a speed; or (4) that he was going at such speed when the train was seen that he chose to venture to cross rather than to stop when he might. His outstanding fault, assuming that he was not foolhardy in attempting to beat the train in passing the crossing, which the plaintiff’s evidence establishes and for which no shadow of excuse is shown, lay in his operation of his car. When about one hundred and fifty feet from the crossing he was going slowly and had his car under control, instead of continuing at that or approximately that low speed and with that control for the short distance to the crossing, he rushed ahead upon receipt of the signal. The conditions which made the crossing especially dangerous were apparent and must have been appreciated by him, and yet he put himself, by his increase of speed, into a position where he could not help himself if suddenly danger arose. Had he proceeded at a lower speed and with his car under better control, he could readily have stopped it after he had an opportunity to discover the threatening presence of the train. Knowing, as even a casual observer must, the obstructions to his view, he, although an invitee, was bound in the exercise of ordinary prudence to use more care than the evidence, upon any view of it, shows that he exercised.. We are of the opinion that the trial court did not err in holding that the jury could not reasonably have found otherwise upon the evidence, and in directing a verdict for the defendant. There is no error. *308 In this opinion Thayer and Beach, Js., concurred.