
    Charles V. Austin, Adm’r, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 1, 1891.)
    
    1. Negligence—Railroad—Failure to ring bell at crossing.
    Plaintiff’s intestate was struck by one of defendant’s engines at a crossing and killed. The judge charged the jury that “ if the bell was not rung as required by statute, the failure to ring it would be a negligent act on the part of the railroad company.” Held, error; that as § 7 of chap. 282, Laws 1854, requiring the bell to be rung at a specified distance had been repealed at the time of the trial, the omission to ring the bell was not negligence per se, and whether the defendant’s train approached the crossing with proper care should have been submitted to the jury.
    3. Same.
    The court also erred in leaving to the jury the specific questions as to whether the flagman was negligent in not warning the deceased, and whether the engineer and fireman were negligent in not seeing him. The question should have been whether under the actual circumstances of the case the company exercised the care that the law required and whether, if it did not, its neglect caused the injury.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial in an action brought for damages for injuries causing death.
    
      Tracy, McFarland, Boardman & Platt, for appl’t; Charles N. Codding, for resp’t
   Allen, J.

—The plaintiff’s intestate was struck by one of the defendant’s locomotives and killed, at the John street crossing, on the afternoon of November 10, 1888. No whistle was sounded as the engine approached the crossing, and the testimony as to the ringing of the bell, whether it was rung at all, or if rung, between what points, was conflicting. The negligence claimed is that the deceased was not warned by the defendant of the approach of its train either by bell or whistle.

After examining the case, we are of the opinion that there was sufficient evidence to take to the jury the questions of negligence as questions of fact, and that the action of the trial judge in refusing a nonsuit was correct. The judgment, however, must be reversed and a new trial ordered, by reason of an error of the trial court in submitting the case to the jury, which will be point-, ed out. The court, in the charge, after stating that the negligence claimed was a failure to warn the deceased of the approach of the train by a whistle or a bell, says: “ An examination of the law shows us what the duty of a railroad company is with respect to the ringing of the bell. It is prescribed that a bell should be placed on each locomotive engine run on any railroad, and rung at a distance of at least eighty rods from the place where the railroad shall cross any public road or street on the same level of the railroad, and be kept ringing until it shall have crossed the .said road or street; or a steam whistle shall be attached to each locomotive engine of any railroad and sounded at a distance of at least eighty roads from the place where the railroad shall cross any such public road or street upon the same level of the railroad, except in cities, and be sounded at intervals until it shall have crossed such road or street. If the bell was not rung, as required by statute, the failure to ring it would be a negligent act on the part of the railroad company, and the plaintiff’s claim is that the evidence establishes that it was not rung as required by the statute, .and, therefore, that the plaintiff was negligent in that respect.”

It thus appears that the question of the defendant’s negligence was entirely taken from the jury by charging that if the jury found that the bell was not rung, then the defendant had violated the statute and was negligent in law. The statute referred to by the trial court was § 7 of jfbhapter 282, Laws 1854. That section required railroad companies to ring the bell of the engine or blow the whistle, at eighty rods from the crossing at a grade or a track of public road, and made the company responsible for damages resulting from that omission, and made me engineer, who should omit the required signal, guilty of .a misdemeanor.

This statute, except the last provision as to the penal provision ■against the engineer, was repealed by the general repealing act of 1886, chap. 593, Laws 1886, p. 838. Since the passage of this repealing act, there has been no statutory duty upon railroad companies to give the specified signals at the required distance, and so it appears that when the accident to the plaintiff’s intestate occurred, in November, 1888*. the railroad company was charged with no statutory obligation to ring the bell at a crossing. The court, however, submitted the case to the jury upon the assumption that the statute referred to was still in existence. Neither the court nor the counsel seem to have been aware of the repeal of the statute. No exception appears to have been taken to this part of the charge, but the appellant claims that his exception at folio 136 of the case is sufficient to raise the question of the correctness of the judge’s charge.

It is not necessary to discuss this matter, for the reason that a formal exception is not indispensable to authorize us to review our own judgment, for, if there is a well-founded reason to believe that the verdict has been rendered upon an improper instruction of the court, or that justice has not been done, we may reverse the judgment, although no sufficient exception has been taken at the trial. Maier v. Homan, 4 Daly, 168 ; Cumber v. Schoenfeld, 34 N. Y. State Rep., 770 ; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506.

We are of the opinion that the error above referred to requires .a new trial in this case. In the absence of the statute, the omission to ring the bell was not negligence per se, and whether the defendant’s train approached the crossing with proper care should have been submitted to the jury. Lewis v. N. Y., L. E. & W. R. R., 26 N. E. Rep., 358.

It also appears to us that the court erred in leaving to the jury, at the request of the plaintiff, the questions:

First. Was the flagman negligent in not warning the deceased sooner ?

Second. Were the engineer and fireman negligent in not seeing the deceased ?

The question to be submitted to the jury was whether, under the actual circumstances of the case, the company exercised the care that the law required of it, and whether, if it did not, the neglect of this care caused the injury to the plaintiff’s intestate?

Whether there is negligence depends upon the degree of care required to be given in each particular case, irrespective of any particular mode. The charging of these requests was excepted to, and seems to be in violation of the rule laid down in Grippen v. The N. Y. C. R. R. Co., 40 N. Y., 34 ; Houghkirk v. R. R. Co., 92 id., 219 ; Dyer v. Erie R. R. Co., 71 id., 228 ; Semel v. R. R. Co., 9 Daly, 321.

The judgment and order should be reversed and a new trial ordered, with costs of appeal to abide event.

- Allen, P. J., and Bischoff, J., concur.  