
    George Lewis, Resp’t, v. The N. Y., L. E. & W. R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    
      1. Trial—Exceptions.
    At the time when the accident happened upon which this action for injuries was brought, § 7 of chap. 282, Laws of 1854, imposing the duty of ringing the bell of the engine eighty rods from a crossing, had been repealed, but this was not known to defendant’s counsel, who objected to the question of the ringing having been omitted being given to the jury, saying, “we say that the law applies only to highways that are regularly laid out as highways of the state,” and claimed that this was a private crossing, and afterwards asked the court to charge “ that the statutory duty of blowing a whistle or ringing a bell only applies to the highway crossing in this case.” Held, that there was no exception taken by'which a point can now be raised that the statute was repealed at the time of the accident.
    
      2. Highway—Railroad crossing.
    Where the evidence tends to show such a user of a railroad crossing by the public for more than twenty years as would have justified a record of the road as a highway by the proper authorities, their failure to perform their duty does not change the mandate of the statute that the road shall be deemed a public highway.
    3. Same—User.
    Such user is that it must have been traveled by the public8' for twenty years, and either kept in repair or taken in charge of the public authorities.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered upon the verdict of a jury and from an order denying a motion for new trial made on the minutes.
    
      Lewis L. Garr, for app’lt; J. M. Gardner, for resp’t.
    
      
       Affirming 24 N. Y. State Rep., 435.
    
   Finch, J.

We see no reason to doubt the correctness of the action of the trial court in refusing a nonsuit and submitting to the jury the «questions of negligence as questions of fact

The only important exception grows out of the repeal of § 7 of chap. 282, Laws of 1854. That section accomplished two things. It imposed upon railroad companies the duty of ringing the bell of the engine or blowing the whistle at eighty rods from the crossing at grade of a travelled public road, and made the companies responsible for damages resulting from that omission ; and then it made the engineer, who should omit the required signal, guilty of a misdemeanor. This last provision was carried into the Penal Code, and left its presence in the act of 1854 no longer necessary. The general repealing act of 1886, chap. 593, p. 838, instead of merely repealing so much of the act of 1854 as had been reproduced in the Penal Code, repealed the whole of § 7 “ to and including the words 1 by reason of such neglect.’ ’’ It follows that when the accident happened in May, 1888, there was no statute making it the duty of a railroad company to give the specified signals at the required distance.

Nevertheless the court in its charge to the jury did assume as matter of law the existence of such a duty, and submitted the question of its omission or performance. To this charge the appellant’s counsel claims that he excepted, and assigns that exception as a ground of reversal.

I think it quite clear that he did not raise that question. He contended quite persistently that the road which crossed the tracks at the place of the accident was not a public highway, but a private crossing, to which the mandate of the statute did not apply ; and when he excepted to the charge which held the contrary, his language shows that he intended to raise, and was understood to raise, not the question of the existence of the statute, but that of its application to the case in hand.

He closed his exception to the charge with the statement: “ I except to that as applicable to this case.” In answer to the exception, the court said: “I spoke of it as a public highway. Is there a point about it?” To which the defendant’s counsel'answered : “I claim that there is no proof that it is a public highway.” The court retorted: “It lias been used for twenty-five years for passengers there,»” to which the defendant’s counsel replied : “ It has been used by people about there; we say that the law applies only to highways that are regularly laid out as highways of the state.” At this point the precise nature of the defendant’s contention became apparent Its counsel conceded the existence of the law to which the court had referred, but denied its application to the crossing in question. The court so understood it, and, after the evidence of user which had been given, seemed somewhat surprised; but finally submitted the question whether the crossing was public or private, saying: “ If it is a highway, gentlemen, the law applies to it A highway may be established by user, and it may have but one end. I did not suppose there was any doubt about it But you can go to the jury on that question.” The defendant’s counsel again excepted, and said: “I take exception to that statement to the jury, and I ask your honor to charge that the statutory duty of blowing a whistle or ringing a bell at .road crossings only applies to public highways, and that it does not apply to .the highway crossing in this case.” The court replied: “ So charged. That is, it does not apply to private crossings.” With this final direction the counsel was seemingly content, for he took no exception to it. Whatever else may be said as to the purpose and effect of the exception, it is entirely clear that the existence of the statute was in no manner questioned or intended to be raised. Both court and counsel conceded its existence, and were quite excusable for not suspecting its repeal, and the sole controversy was as to its application to the road in question. There is, therefore, no exception to the charge which reaches the point now sought to be made.

To hold otherwise would be to encourage what would operate as a misleading of the court. If the counsel had known at the time that the statute had been repealed, and had raised that objection, the court would still have been bound to submit to the jury the question whether the train approached the crossing with due care, and the jury would have been left 'to determine that question without the aid or guidance of the statute.

The mistake which occurred gave to the defendant a more favorable position before the jury than it was in truth entitled to, for even though the bell rang and whistle blew at eighty rods the jury in the absence of the statute would have been at liberty to have said that in view of the locality and the speed of the train the warning should have been given at a greater distance. The question argued was thus not raised and the mistake which occurred seems to us to have been rather beneficial than injurious to the appellant

The question whether the crossing was on a public traveled road became upon the facts proved a question for the jury. The evidence tended to show such a user by the public for more than twenty years as would have justified a record of the road as a highway by the proper authorities. Their failure to perform their duty does not change the mandate of the statute that the road shall be deemed a public highway. In the Barry and Byrne cases upon which the appellant relies there was no such proof. In the former there was a mere license to cross the tracks, and in the latter an alley which had been more or less used by the public. Indeed, since there was no objection on the part of appellant to the final submission of the question to the jury and its counsel had the advantage of that submission, it is difficult- to see what question is left open to exception. ' The appellant’s counsel did ask the court to charge as matter of law that the duty of giving the signals did not apply to this crossing; but the court refused, saying that it did apply if the crossing was on a public highway, and to that refusal no exception was taken. We have recently determined what facts constitute a public highway within the meaning of the statute relating to user. Speir v. New Utrecht, 121 N. Y., 420; 31 N. Y. State Rep., 414. We there held that it must have been travelled by the public for twenty years and either kept in repair by or taken in charge of the public authorities. There was evidence of both facts in this case sufficient to warrant a conclusion by the jury that the crossing was on a public highway. ♦

. We think no error was committed which will warrant a reversal and that the judgment should be affirmed, with.costs.

All concur.  