The Bridgeport evening farmer., 1909-12-14

nied the motion made by counsel for the New Haven company to set aside the verdict of s5,O00 given by a jury in the Superior court upon the suit of Attorney Caleb A. Morse. of New Ha- ven. representing James H. Elliott. administrator of the estate of the late Charles Perro. who was killed some time ago by a New Haven road engine.
 In his decision, Judge Wheeler takes occasion to criticise attorneys for making motions for non-suits. motions to direct verdicts, and motions to set aside verdicts, declaring that often they are made with little regard to reason. judgment or justice. This he the sincerity of the motion in the mind of trier. and sometimes leads to a nasty consideration. The decision follows:
 traveller approaching from the west grade crossing at East Litchfie.d where the plaIntif's intestate was killed, cannot see a train coming from the south until he is within twenty five or thirty feet of the crossing and when he can see the engine south only 231 feet There is a steep rise of rocky hill from the railroad loca- ton west, and two rock cuts through which the track passes not far from this crossing. and this situation inter
  crossing from the south.
 There are no gates. electric bells or other precautions at this crossing.
 There were no rules or regulations of the defendant governing the opera ton of its trains in approaching this ence. other than the duty of those in charge of the train to give the statu- tory signal by bell and whistle
 The average speed of passenger oN oh miles an hour.
 This highway Is the main line of travel between Torrington and Thom- aston
 These are all practically admitted facts in this case. They serve to indi- cate that this crossing Is an excep- tLonally dangerous one and one where great care on the part of the defend ant was required in the operation of its trains. IL was a case where the circumstances of danger were so ex- ceptional as to have required the de- fendant In the exercise of ordinary care to have given more than the stat utory worning of the approach of the train; indeed. do not understand how any other conclusion could have been reached This Is In fact one of the most dangerous grade crossings in the state. and while the rules and regulations of the defendant as to the crossing of the highway were not in evidence. 1t may be that the defendant has provided for other warning to travellers than the usual statutory signals.
 But aside from this, the jury were justified in finding negligence from, the failure to have provided for any other warning than the statutory sig nals-
 That a whistle was blown on the en- zine Is a conceded fact, the place where 1t was blown is in dispute, and the jury may, on the evidence, have found that 1t was blown south of the whistling post and not thereafter. and the negligence of the defendant might have been found from this
 The jury might have found the en- zine bell was not rung. and the better evidence supported this conclusion Negligence hIght well have been pre- dicated on this.
 The jury might have found the speed excessive under the situation existing at this crossing and at least forty miles an hour The fact that the train was a little late and mak- ing up time. the distance the train ran after the engineer saw the de- ceased. the distance the 1-250 pound horse was carried and thrown. made 1t clear that the train crew were not right in saying the speed was the us- ual speed A conclusion of negligence drawn from such a speed under the circumstances of the case could nor be said to be based on insufncient esf derce.
 The jury might have found the emergency air brakes were not ap- piled since no one on the train felt any far. and no one on or off the train heard any grinding noise, and both of these conditions appear when train Is stopped in an emergency.
 The engineer said he did not see the deceased until his engine was within one hundred feet of the crossing. and the fireman said he did not see him until within two hundred feet of the crossing. From these statements the jury might very reasonably have found that those in charge of the en- zine were not keeping a reasonable outlook. since the deceased was ob- seryable to one on the engine at much greater distance.
 These considerations are sufficient to have warranted the jury In finding the defendant negligent and that such negligence was a proximate cause of the accident In my judgment no other conclusion was fairly admissible unGer the evidence
 The plaintiff knew the danger of this crossing There was no evidence to show that he knew a train was due at about this time and none from which such inference could fairly be