pon the pleadings stated, of which the ord in the original action formed a part, case came on for hearing, and the court on the pleadings and facts shown by such ord dismissed the action on the ground t Maher's obligation was entered into ile Mullaley was a party to the former acn, was conditioned on that fact, and bene ineffective on Mullaley's discharge from sponsibility in that action under the stipuion voluntarily assented to in writing by e plaintiff's attorney, and through no comlsory action of the court. We think that e facts did not justify this summary disssal of the action. The parties were at sue upon two questions of fact, namely, hether the officer having the execution ade the demands alleged so as to fix the ability of the defendants, and whether the tached property was exempt from attachent and execution as implements of Malone's ade. These questions the parties were entled to have heard and decided upon the Leadings if the court had jurisdiction of the tion. [2, 3] Matters of defense like the release of principal upon a bond or of misjoinder or onjoinder of parties are to be taken advanage of by pleading. Suppose it were true hat the dropping of Mullaley as a party efendant in the original action in the manmer above stated released him from liability as a principal on the bond in suit so that Maher was also released; had the defendints in this suit pleaded such release, it is possible that it might be shown that such release or dropping of Mullaley as a party lefendant was with the consent of Maher, the surety in the bond. It was a question therefore to be raised by pleadings. [4] But we are clear that the dropping of Mullaley as a party in the former action did not release either him or Maher from their obligations under the bond. The bond was a joint and several obligation, and the three obligors jointly and severally bound themselves to pay to the plaintiff the actual value of Malone's interest in the attached property not exempt from attachment if the conditions of the bond were not fulfilled. If Malone and Mullaley paid any judgment which was recovered against them or either of them in the former action, or in default of such payment paid to the officer having the execution the actual value of Malone's interest in the attached property, the bond was to be void. Thus under the terms of the condition both Malone and Mullaley, to save themselves and their surety from liability on the bond, were bound to pay not only any judgment which might be rendered against both of them, but any judgment which might be rendered against either of them, or, failing in that, to pay the officer having the execution on any such judgment the value of Malone's interest in the attach It made no difference, therefore, to Mullaley's obligation or to Maher's whether plaintiff's judgment, if rendered, should be against Malone or against Mullaley or against both. In either case, if the two principals in the bond failed to pay either the judgment or the value of Malone's interest in the attached property to the officer on the execution, all three of the obligors would be bound to pay the value of the attached property to the plaintiff on the bond. Dropping Mullaley from the case therefore in no way increased the liability of either on the bond. [5] Dropping him as a defendant did not drop him from the bond, but he and Malone, as principals, still remained liable upon it, and recourse to them can still be had by the surety, Maher, if he is compelled to pay. Dalton v. Barnard, 150 Mass. 473, 475, 23 N. E, 218. As dropping Mullaley did not release him from his liability on the bond, the fact that the plaintiff was active in causing him to be dropped is of no importance. It would only be of importance had his act released the principal from liability, in which case the surety would also have been re leased. [6] The court was wrong therefore in dismissing the case upon the ground stated. The defendants, however, say that, Malone having died since the present suit was brought, and his death having been suggested on the record, and his name dropped therefrom, the plaintiff cannot proceed with the action without citing in the personal representative of Malone, and, having failed to do, this has released Malone and his estate as one of the principals on the bond, and so has released the surety, and therefore that the dismissal of the action was correct. The defendants base their claim that the action could not proceed after Malone's death without citing in his executor or administrator upon the old rule that upon a joint and several contract the plaintiff must elect to proceed against all the obligors jointly or against a single one only. Practice Book, p. 237, § 119, provides that persons severally and immediately liable on the same obligation or instrument may all or any of them ment may be rendered against those so joinbe joined as defendants, and a joint judged. This permits an action against all or against one or more of the parties to a joint and several obligation, and where, pending action, one of the defendants dies, the action does not abate, but, the death being suggested on the record, the action may proceed. Practice Book, p. 199, § 1132. The death of Malone pending the present action did not abate the action therefore, but, the death having been suggested on the record, the plaintiff may proceed to judgment against the surviving defendants, and the plaintiff's failure to summon in the administrator or executor of Malone, if such there be, did not have the effect to discharge the remaining There is error, and the cause is remanded, the main road between Hartford and New to be proceeded with according to law. The Haven, received injuries which caused his other Judges concurred. (91 Conn. 301) HAYES v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Errors of Connecticut. Jan. 25, 1917.) GROUND. 1. JUDGMENT 250-INJURIES AT CROSSING NEGLIGENCE RECOVERY ON OTHER In an action against a railroad for a death at its crossing, where the complaint charged the road with negligent conduct, causing personal injuries to plaintiff's intestate, and nothing more, and averred the absence of contributory negligence on the latter's part, the action being founded on negligence, recovery on any other ground was not permissible. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. 250.] 2. APPEAL AND ERROR 927(7) DIRECTED VERDICT-ACCEPTANCE OF TESTIMONY. On appeal from judgment on directed verdict for defendant, the Supreme Court of Errors must assume the truth of plaintiff's testimony. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. 927(7).] 3. RAILROADS 331(3)-INJURIES AT CROSSING CONTRIBUTORY NEGLIGENCE - INVITATION TO CROSS. One who is invited to cross a railroad crossing by the conduct of the road, its employés or agents, or even directly by an employé or an agent, is not justified in acting as though the crossing was not dangerous, and will not be permitted to throw off from himself all responsibility for the outcome. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1076; Dec. Dig. 331(3).] death by being struck by a train coming from the east as he was attempting to pass over a grade crossing in the town of Berlin. The crossing was a dangerous one, and especially so for travelers approaching it from the north, by reason of the view of the railroad tracks to the east being shut off for a considerable distance by buildings of the American Brick Company. These buildings consist chiefly of a long narrow brick kiln shed, 40 feet in height, running parallel to the railroad tracks and not far distant therefrom, and having its westerly end 200 feet from the highway and a two-story office building, 18 feet wide in front, standing about 25 feet from the highway and back from the crossing 139 feet. As a result of the presence of these buildings, a south-bound traveler's view of the tracks east of the crossing is obstructed for a considerable distance until he arrives opposite the office where, at a distance of 164 feet from the center of the tracks, there is an open view of them for 265 feet. From that point, continuing southerly, the unobstructed view gradually increases until at 65 feet from the crossing it extends up the tracks 470 feet, at 50 feet to 530 feet or more, and at 40 feet to 1,200 feet. Across the highway north of the main line there is a siding for the use of the brick company, and extending upon the company's premises up to and into the brick kiln building. Between the southerly 4. RAILROADS 331(3)—INJURIES AT CROSS-rail of this siding and the northerly rail of ING CONTRIBUTORY NEGLIGENCE. Where an automobile driver, about 150 feet from a railroad crossing, was going slowly, and had his car under control, but, when the road's employé at the crossing signaled him to come ahead, he speeded up his car, going down grade, although, as he approached the tracks, there was no obstruction of his view, and he could have seen the train which struck him in time to have stopped, had he been proceeding at a lower speed and with his car under better control, he was negligent. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1076; Dec. Dig. 331(3).] Wheeler and Roraback, JJ., dissenting. Appeal from Superior Court, Hartford County; Gardiner Greene, Judge. the main line the distance at the crossing is 27 feet. Evidence was offered on behalf of the plaintiff that at the time of the accident there were two box freight cars standing on this siding on the brick company's premises, one end of the two cars being close to the shed and the other about 50 feet east of the highway. The presence of these cars would considerably lessen the distance on the highway from the main tracks that unobstructed views of them could be had for a given distance. Under such conditions the range of vision easterly along the tracks at a point in the center of the highway in front of the office would be slight. At 135 feet northerly of the north rail of the main line it would be reduced to 70 feet; at 100 feet, to 90 feet; at 80 feet, to 110 feet; at 70 feet, to 130 feet; and at 50 feet, to Action by Mary L. Hayes, Administratrix, against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant plaintiff appeals. No error. Action to recover damages for personal injuries resulting in the death of the plain-feet of the tracks were in full view. tiff's intestate, and alleged to have been caused by the defendant's negligence, brought to the superior court in Hartford county and tried to a jury. By direction of the court the jury returned a verdict for the defendant, and from the judgment thereon the plaintiff appealed. The plaintiff's intestate, Edward L. Hayes, while driving his automobile southerly on 260 feet. At a distance of 35 feet 1,280 The highway at this point, at the time of the accident, was an improved road, in good condition with a slightly descending grade to wards the south. The testimony on behalf of the plaintiff, relating to the circumstances immediately attending the accident, was confined to that of two witnesses, one of them a man named Gilman who was riding with and beside Hayes at the time. Their testimony, denied a dangerous place, and the man who in important respects by the defendant's tes- knowing it to be a railroad crossing, aptimony, was to the following effect: Hayes proaches it is careless, unless he approaches was unfamiliar with the crossing. He saw it as if it were dangerous." Borglum v. N. it as he approached, going something like Y., N. H. & Htfd. R. R. Co., 90 Conn. 52, 55, 25 miles an hour, when he was about at a 96 Atl. 114, 175. One who is invited to cross crossroad some 600 feet away. He thereupon by the conduct of the railroad company, or threw out the clutch, put on the brakes, of its employés or agents, or even directly by and gradually slackened his speed until he such employé or agent, is not justified in actalmost stopped, and was going not over 10 ing as though it were not dangerous, and will miles an hour when he reached a point about not be permitted to throw off from himself opposite the office. At that time a man, all responsibility for the outcome. He is standing at the crossing without a flag, but still bound to act with common prudence in in fact the flagman in the defendant's em- view of the dangers of the place as well as ploy, beckoned to him to cross as the man of the invitation. Cottle v. N. Y., N. H. & had just previously done to a van which had Htfd. R. R. Co., 82 Conn. 142, 145, 72 Atl. crossed. Hayes then released the brakes, 727; Dundon v. N. Y., N. H. & Htfd. R. R. threw in the clutch, and at a constantly in- Co., 67 Conn. 266, 272, 34 Atl. 1041; Ellis v. creasing speed proceeded on his way. When Boston & Maine R. R. Co., 169 Mass. 600, 602, his front wheels were about at the siding 48 N. E. 839; Union Pacific R. R. Co. v. Rosecrossing, Gilman, who was sitting at Hayes' water, 157 Fed. 168, 171, 174, 84 C. C. A. 616, right, heard the train, and, glancing to the 15 L. R. A. (N. S.) 803, 13 Ann. Cas. 851. east back of Hayes, saw it coming, and imThe question before the jury on this aspect mediately jumped to the ground, landing not of the case thus became resolved into one as far from the north rail. Hayes went on, to whether Hayes did exercise the common his speed at the time being about 20 miles an hour, and was struck by the train when part-prudence of one who, cognizant of the danly over the crossing. There was no testi- gerous conditions surrounding the crossing, mony that he looked, listened, or took other had received an invitation from the flagman precautions for his safety. At the conclusion of the oral testimony, the court and jury, upon the agreement of counsel, visited and viewed the scene of the accident. Herbet O. Bowers, of Manchester, for appellant. William L. Barnett, of New Haven, for appellee. 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 employé 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 upon the PRENTICE, C. J. (after stating the facts as above). [1] The complaint charges the defendant with negligent conduct, causing personal injuries to the plaintiff intestate, and nothing more, and avers the absence of contributory negligence on the part of the latter.signal of one who was a stranger to him and The action is therefore one founded upon negligence, and recovery upon any other ground was not permissible. Pitkin v. Railroad, 64 Conn. 482, 490, 30 Atl. 772; Sharkey v. Skilton, 83 Conn. 503, 507, 77 Atl. 950. Plaintiff's counsel do not claim otherwise. throwing precautions 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 [2] The only evidence tending to show negthat Hayes received the invitation when, ligence on the part of the defendant was that with clutch out and brakes on, he was progiven on the plaintiff's behalf, to the effect ceeding slowly and with his car under full that the flagman stationed at the crossing, control along the highway some 150 feet its employé, beckoned to Hayes as he ap- from the crossing, where his view of the proached the crossing to proceed. Although tracks to the east was practically cut off, this testimony was denied by the defendant's and that he thereupon without further inwitnesses, the plaintiff was entitled to go to the jury upon the issue of the defendant's negligence, and for our purpose we are re quired to assume that the invitation to cross was given as testified. quiry or means of information released the brakes, threw in the clutch, applied the power, and proceeded with ever-increasing speed down the grade towards the crossing. His [3] The invitation thus given was one increase of speed was such that it went up which Hayes had a right to rely upon to from 10 miles or less an hour to about 20 in some extent, but not such an extent that he the short intervening space traveled. There was thereby excused from making some use is no evidence tending to show that he looked of his senses and taking some precautions or listened for the approaching train. The 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 halfway to the crossing and was 70 feet from it, he could have seen up the tracks 130 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 50-foot point where 260 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 the car 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. WHEELER J. (dissenting). The view of the evidence most favorable to the plaintiff which the jury could have reasonably found must be adopted by the court in passing upon the question of directing a verdict, or on that of a directed verdict. Whether the two box cars were on the siding was a disputed fact. The jury might have found that they were there at the time of the accident. With these box cars on the siding the majority opinion finds the evidence to be that Hayes could have seen little of the main railroad track to the east of the highway while he was traveling south on the highway and opposite the office building at a point 139 feet from the crossing, and that when he was northerly of the north rail of the track he could have seen the track east of the highway crossing as follows: At 135 feet, 70 feet; at 100 feet, 90 feet; at 80 feet, 110 feet; at 70 feet, 130 feet; at 50 feet, 260 feet; at 35 feet, 1,280 feet. It appeared in the evidence that Hayes could not have seen an approaching train between a point 600 feet from the crossing and a point about 135 feet from the crossing, except that at about 400 or 350 feet from the crossing the top of the cars could have been seen, and also a view of an approaching train could have been had between the shed and the box cars. The nearer Hayes approached the crossing from the point 50 feet from it the greater the distance he could have seen an approaching train, and at a point 5 feet from the north 2,465 feet east of the crossing. There was a whistling post 1,345 feet from the crossing, and the engine gave the customary whistling signal at this point. There was also an automatic bell at the crossing, which began to ring when this train was 2,000 feet from the crossing and continued until the engine had passed the crossing. [4] 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 op-rail he could have seen a west-bound train eration of his car. When about 150 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 ordi-ing, thought he heard a train, and stopped nary 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. A flagman was stationed at this crossing to protect travelers. Hearing this train approaching, he left his shanty, which was on the east side of the highway and 131⁄2 feet north of the north rail of the main track, and stood on the east side of the highway and a few feet north of the shanty. The flagman heard the bell ring when the engine passed the 2,000-foot point. Hayes, when at the crossroad about 600 feet from the cross his automobile. He then went on at not to Gilman the truck to proceed, it had crossed the main | testimony. The jury might have found Hayes track in safety, and that Hayes proceeded on was following close behind the truck and goslowly after the truck, and as it passed over, ing slowly, and that when the truck got the the flagman beckoned Hayes to cross over, signal to cross over it was near or upon the and he then released his brakes and increased siding track, and when Hayes received the his speed to about 20 miles an hour and as the signal to cross he was at a point about 75 automobile was about crossing the switch, feet from the crossing. From that point he the witness saw the train approaching, and increased his speed from a very slow speed to threw himself from the auto and fell near 20 miles an hour, when his car was struck. the main track, while Hayes drove on, and From the crossroad to the office buildings his auto was hit by the engine. Gilman testified he was keeping a lookout, Harlow, a witness for the plaintiff, testified and he testified that as they approached the that Hayes slowed down nearly to a stand-crossing he was watching for "any signs of still just behind the truck, which had stopped danger." Whether Hayes was 75 or 150 feet on the switch, and when the flagman had from the crossing when he received the sigbeckoned to the truck to cross and it had nal, he could not have gotten his speed on crossed over, he beckoned to Hayes to cross, the instant to 20 miles an hour, and it is which he did. reasonable to conclude that he could not have covered this distance at an average speed to exceed 10 or 15 miles an hour. As the train was going 30 miles an hour, its speed was two or three times that of Hayes, and as at a point 70 feet from the crossing Hayes could have seen the train only when it was 130 feet from the crossing, it was impossible for him to have seen the train had he looked at the 70-foot point. The opinion of the court holds otherwise, and we think mistakenly. If Hayes traveled from this point to the crossing at 20 miles an hour, the train would have gone 105 feet while he was going 70. When issues of fact are as close as this, it seems preferable to permit the trier to determine the facts. The plaintiff was entitled to ask the jury to find upon the testimony of either witness. Both witnesses agree that the truck crossed over just before Hayes attempted to, and both agree that the flagman beckoned to the truck to cross and to Hayes to cross. The difference in the testimony of these two witnesses is in the closeness of Hayes to the truck when it crossed over, and perhaps in the speed at which Hayes was traveling just prior to his receiving the flagman's signal to cross over. The train was approaching at a speed of 30 miles an hour. The flagman stood where he could see the approaching train for over 1,200 feet, and he knew it was approaching when it was distant over 2,000 feet. When he beckoned Hayes to cross over the train was not over 300 to 400 feet from the crossing. It was the duty of the flagman to know where the train was, and not to beckon to Hayes to cross over unless he could do so with safety. He knew, or ought to have known by the use of ordinary diligence, that if Hayes crossed over upon his invitation he would be run down by the train. After Hayes passed the office building and slowed down to nearly a stop and received the signal from the flagman to cross over, there is no evidence that he or Gilman looked or listened, or took any precautions except to rely upon the fact that the truck had passed in safety upon the flagman's signal, and that the flagman had sig-truck was invited by the flagman to cross naled them to cross over. Hayes died as a result of his injuries; his declarations as to the flagman having signaled him to cross over were in evidence, but beyond this his state ment did not go. We think it clear from the evidence that the first point Hayes could have seen the approaching train was when he was 50 feet from the crossing; from that point he could have seen the train when it was 260 feet from the center of this crossing. And we think, too, the jury might reasonably have found that Hayes, had he seen the train at this point, might have stopped before the engine struck his automobile. And the question is, does this situation which the evidence discloses require the conclusion, as matter of law, that Hayes, in failing to look and stop his automobile, and in relying upon his not having seen the train up to the time the over, and upon the fact that the truck passed over in safety upon the invitation of the flagman and upon the express invitation of the flagman to him to cross over, did not act as a reasonably prudent man would have A mooted issue of fact was whether the flag- acted? It was competent for the jury to have man beckoned to Hayes to cross over. The found that the truck made considerable noise jury might reasonably have found this. As-in crossing over the switch and main tracks, suming this to have been found, the defendant and that the noise of the truck and of his does not contest the issue of its negligence. own machine may have prevented Hayes The case turns upon whether Hayes' own neg-hearing the approaching train and the bell. ligence contributed materially to his injuries. Hayes could not rely wholly upon the flagAs the majority read the evidence, Hayes man's invitation and fail altogether to use was 150 feet from the crossing when the flag- his own senses. And he did not. Up to a point man signaled him to cross over. This we within about 50 feet of the crossing the jury |