Kilburn v. New York, New Haven, & Hartford Railroad

Hammond, J. This is one of a large class of cases where no useful purpose is served by a detailed recital or elaborate discussion of the evidence. It has all been carefully considered, and we are of opinion that the questions, whether Kilburn, the driver of the truck, was a licensee or an invitee while entering upon the defendant’s track, and whether the defendant was negligent, were clearly for the jury. The special finding that he was an invitee was justified by the evidence. The question whether Kilburn was in the exercise of due care is close, but upon the evidence the jury properly may have found that as he drove out of the yard into South Street he looked up [495] the street to see whether there was any approaching train; that even if he saw the cars standing upon the track several hundred feet away there was no engine in sight, and that to a person in his situation the cars would appear to be freight cars standing for the time being upon the track and apparently not soon to be moved; that he was justified in thinking that he could back across the track and deliver at the shipping room the few articles remaining on his truck before the cars would be started by an engine or in any other way; that by reason of the noise made by the wind and the action of the truck his attention was not attracted by the noise of the cars after they started and by the shouting of the brakeman; and that in view of all these circumstances, taken in connection with the other evidence, he was in the exercise of due care even if he relied upon himself alone. There was also evidence upon which the jury might have found that he and Payette were engaged in the same work; that to a certain extent he relied on the latter for information as to whether there was danger in backing upon the crossing, and that under all the circumstances Payette acted with due care. In a word, the evidence justified a finding that, whether Kilburn relied upon himself alone or to any extent upon Payette, due care was exercised for his protection. We see no error in the manner in which the presiding judge dealt with the rulings requested. In each case the order is Exceptions overruled.