The substance of the reasons of appeal in this case is that the court erred in not holding upon the facts found, either that the defendant was not negligent as alleged in the complaint, or that the plaintiff's intestate was guilty of contributory negligence.
Unless either the absence of such negligence upon the part of the defendant, or the presence of contributory negligence upon the part of the deceased, is a necessary legal inference from the facts of record, the defendant has failed to sustain the burden, assumed by the voluntary default, of either disproving the negligence alleged or of proving contributory negligence. Lawler v. Hartford Street Ry. Co., 72 Conn. 74;Ebert v. Hartley, ibid. 453.
The complaint avers that the defendant negligently backed its engine at great speed from Elliot's station to and by Hampton station, upon the wrong or south track, without providing and placing a suitable light or reflector upon the rear of the tender, and without having a person as a lookout upon the rear of the tender, and without giving any warning of the approach of the engine, and struck the deceased when he was rightfully crossing the defendant's tracks at Hampton station in the exercise of due care.
After the default the defendant gave written notice, as required by statute, that it would disprove the above allegations, would prove contributory negligence, and that the injuries were caused by the negligence of a fellow-servant of Gallivan.
The defendant now asserts that it has performed its undertaking, and that it has proved that the railroad company discharged its full duty toward Gallivan and that Gallivan's own failure to exercise due care essentially contributed to cause his injury. *Page 210
As to the performance of its own duty the defendant argues that it has proved, first, that it was not negligent in failing to provide a suitable light as alleged, since the court has found that the light used was a proper one; second, that it was not negligent in failing to place a lookout on the rear of the tender, since the facts found show that the lantern used lighted the track for so short a distance, and that the speed at which the engine was moving was so great, and the night so dark, that such a lookout could not have seen sufficiently far along the track to have enabled him either to warn a person upon the track of the approaching engine, or to signal the engineer so that he could either have stopped the locomotive or so slackened its speed as to have avoided the accident; and third, that it has proved facts which show that the standard of duty to be applied to the defendant was only that degree of care which it was required to exercise, in the operation of its engine, toward a person unlawfully and unnecessarily upon its tracks.
As to contributory negligence the defendant claims to have proved facts which show, either that at the time he was struck Gallivan was not crossing the track at Hampton station as alleged, but was upon or dangerously near the track at a point east of the station, or, that if he was crossing the track, he failed to look and listen before going upon the track.
A careful examination of the finding shows that it fails to support the assumptions of fact upon which the defendant's argument rests. Regarding the light used, the court has found that it was a proper one if the locomotive had been properly managed and a proper lookout kept. The court refused to find, unqualifiedly, that a proper light was used. The plain inference from the language of the finding is, that when no lookout is placed upon the tender a trainman's lantern without a reflector, hung upon the back of the tender, is not a sufficient light when an engine upon the track for east-bound trains is backing west, in a dark evening, from one railroad station to another, and over crossings upon which people may be lawfully and properly passing, and when at the same time another train is approaching the same station *Page 211 and crossings from the same direction upon the other or west-bound track.
Again, it does not appear from the finding that the presence of a lookout upon the tender would not have prevented the accident. The twelve miles an hour speed decreased as the engine approached its train. That it was moving much slower than that before it reached the station or the crossing, does not conflict at all with the finding, and though the lantern upon the tender lighted the track but a few feet, the time required to move that distance may have been sufficient to have enabled a lookout to either warn Gallivan of his danger or to signal the engineer so that he could have prevented the accident.
We cannot, upon the record before us, say that the court erred in refusing to uphold the claim that in the management of its locomotive the defendant owed no duty to the plaintiff's intestate, excepting that which it owed to a person unlawfully upon its tracks.
In their brief, counsel for the defendant say that the allegation of the complaint that Gallivan was struck while crossing the track at Hampton station "is not sustained by the proof." Upon the hearing in damages it was not necessary that this allegation should be sustained by proof, to entitle the plaintiff to a judgment for substantial damages. It is one of the material allegations which the defendant attempted to disprove, in order to show that the accident was not the result of its negligence. This it endeavored to do by proving that Gallivan was unlawfully upon its tracks at a point east of the station when he was struck, and by proving that the railroad company in the operation of its locomotive discharged the full duty which it owed to one thus unlawfully upon the tracks.
The record contains certain evidential facts; such as that Gallivan took a certain road when he left his house on the evening in question; that he stated what he was going to do; that he was found at a certain place after he was injured; all of which tend to establish the main fact, as claimed by the defendant, that Gallivan was wrongfully upon the tracks *Page 212 east of the station, and not rightfully crossing the track at the station when he was struck.
But the trial court has not only not found the main fact which the defendant attempted to prove, but with all the evidence before him the trial judge has expressly refused to find it, upon the ground that it was not proved, as appears by the marginal note of "not proven" upon the defendant's proposed finding of facts.
This court cannot correct the record by supplying that fact so essential to the defendant's contention, as there may have been evidence affecting that point other than the facts before us, and as no appeal was taken from the refusal of the trial judge to find the fact as requested. Nor can this court properly say, as defendant's counsel assert in their brief, that "by no possibility" could the accident have occurred at the highway crossing, nor that the only reasonable conclusion consistent with the facts found is that Gallivan was east of the station when he was struck. It was exclusively the province of the trial court to weigh the evidence and decide the question of fact as to the situation of the parties when the accident happened, and as the Superior Court has refused to sustain the defendant's claim upon that question of fact, we cannot, in deciding the questions of law presented, assume upon the facts stated that Gallivan was unlawfully upon the defendant's track.
The material fact averred in the complaint, that Gallivan was injured while he was rightfully crossing the defendant's track at the station, not having been overthrown upon the hearing in damages, the defendant has failed to prove such facts as it was required to prove to support its claim that by performing the duty which it owed to one unlawfully and unnecessarily upon its tracks, at a place where the defendant had no reason to anticipate a person would be walking, it discharged its full duty toward the plaintiff's intestate. The court, therefore, properly overruled the claim that the only duty which the law imposed upon the defendant, upon the facts proved, was "to take all reasonable steps to prevent an accident after the danger was discovered." *Page 213
It is true that in deciding whether the railroad company performed its duty it is important to learn not only the situation of Gallivan upon the track when the accident happened, but also his relation to the company at that time, as a different rule may be applicable to the conduct of the company toward one of its own employees than toward a stranger.
The complaint neither alleges that Gallivan was engaged in performing his duties as a section foreman when he was injured, nor that he was at any time in the defendant's employ. The court, however, finds that Gallivan was a section foreman in the employ of the defendant, but does not find that he was acting as the defendant's servant when he was injured. It further finds that the accident happened after the working day had closed and Gallivan had been to his home, but rules that the men upon the engine were his fellow-servants.
While the defendant contends that by reason of the averments of the complaint, as well as from the facts found, the only proper standard by which the defendant's action in operating the engine in the manner it did is to be judged, is the degree of diligence and foresight which the law requires a railroad company to exercise toward one not an employee, it seems also to be claimed that the ruling that the men upon the engine were fellow-servants of Gallivan, indicates that the court held that he was acting as the defendant's servant when he was struck, and that in deciding whether it had been proved that the defendant was without negligence, the court applied the law of master and servant, but erroneously failed to apply the rule which exonerated the defendant from liability for an injury caused by the misconduct of the fellow-workmen of the deceased.
Whether we look at the allegations of the complaint or at the facts found, we think the true test of the defendant's negligence in this case is not the legal obligation which a railroad company is under toward its workmen employed upon the tracks, but that the rule to be applied is that which defines its duty toward a stranger.
That Gallivan when injured was acting as the defendant's *Page 214 servant, was no part of the plaintiff's case, and is inconsistent with the defendant's principal claim that he should be regarded as a stranger. That he was an employee and may have been acting as such at the time of the accident, is mainly important as furnishing some basis for the defendant's claim that, if he was not to be considered a stranger, his injury was the result of the fault of his co-employees. To have availed itself of the rule that an employer is not liable for an injury sustained by an employee through the misconduct of a fellow-servant, the defendant should have shown: first, that Gallivan was engaged as an employee at the time he was injured; second, that the accident was the result of the misconduct of other employees; and third, that the relation of the latter to the deceased was that of fellow-servants. At the defendant's request the court ruled as a matter of law that the engineer, fireman and brakeman were fellow-servants of the plaintiff's intestate, who was a section foreman. But neither that ruling, nor any statement in the record, is equivalent to a finding that Gallivan was engaged in his employment as section foreman when injured. Nor does it appear that the accident was caused by the failure of the men on the engine to perform any duty imposed upon them. Apparently it was not the duty of either the engineer or the fireman to leave his post and act as a lookout upon the back of the tender, nor to require the brakeman to act in that capacity. It does not appear that the brakeman had any duty to perform upon the engine, nor that it was the duty of any of these persons to provide a different light or a reflector and cause it to be placed on the rear of the tender. The negligence charged in the complaint is that of the railroad company. The engine was run to Elliot's station and back in the manner stated, by direction of the train-dispatcher and the conductor, and apparently not in violation of any rule or direction of the defendant company. If, therefore, the trial court held that the defendant had failed to prove that it had performed its duty as an employer, and by so ruling applied too high a standard of duty, it is immaterial unless the facts, when tested by the other standard, *Page 215 namely, the duty which the railroad company owed to a stranger rightfully crossing its tracks, show that the defendant performed its duty. Applying the latter test, we think the court did not err in holding that the facts fell short of proof that the defendant performed its full duty.
Railroad companies know that at highway crossings and often at stations people are liable to be crossing the tracks, and that they have the right to do so. The law requires that for the protection of human life all trains, cars and engines shall be so managed that when nearing such places proper warning of their approach shall be given to persons who may be about to cross the track, and that the utmost vigilance shall be exercised to discover any one upon the track in order that those in control of the train may do everything possible to avert an accident. Proof that the defendant's locomotive was run by this station and crossing at 7 o'clock in the evening, in such a manner that none of those upon it could see a person upon the track before them, and under such circumstances that one rightfully and with reasonable care crossing the track upon which the engine was coming, might receive no warning of its approach, is not proof of facts which show as a matter of law that the railroad company was free from negligence.
The facts relied upon by the defendant in the argument as establishing contributory negligence, namely, first, that Gallivan negligently placed himself in a dangerous position by walking upon or near the tracks east of the station; and second, that if he was lawfully crossing the track he failed to look and listen, are not found, nor do they necessarily follow from the facts which are found. In showing that it does not appear from the record that the defendant was without negligence, we have already pointed out that the alleged fact that Gallivan was lawfully crossing the track when injured, does not conflict with the finding, and that the trial court has refused to find that Gallivan was walking upon or near the track as the defendant claims. The first ground, therefore, of the defendant's claim as to contributory negligence, requires no further discussion. *Page 216
That Gallivan failed to look and listen before crossing the tracks is an assumption which is not necessary in order to reasonably explain the manner in which the accident happened. When we consider that the engine was backing west upon the east-bound track, and that a passenger train coming in the same direction upon the other track reached Hampton station at about the same time with the backing engine, it is easy to see how Gallivan, having looked and listened, may have seen and heard only the approaching passenger train, and may, under the circumstances detailed in the finding, have reasonably supposed that while he was passing over the east-bound track he was in no danger from a train coming west upon that track. There was no error in refusing to hold "that, as a conclusion of law from the facts, the plaintiff's intestate was guilty of contributory negligence."
Since the facts show that the accident was not caused by any incompetency of the engineer or fireman, it is unnecessary to consider the motion to amend the record so that it may appear that they were competent men.
There is no error.
In this opinion the other judges concurred.