
    Thomas W. Case, Resp’t, v. New York Central & Hudson River Railroad Company, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    1. Negligence—Railboad Company.
    Negligence cannot be predicated on the omission of the company to station a flagman or maintain gates and lights at a highway crossing, in the absence of any statute imposing such duty.
    2. Same—Cattle Guaeds.
    § 32, chap. 565 of 1892, does not include injuries to a horse driven by the owner on the track on a dark night while traveling along a highway.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Herbert K Kinney and Ashbel Green, for app’lt; A. S. Tompkins, for resp’t.
   Dykman, J.

Upon the trial of this action the counsel for the defendant requested the court to charge the jury that the defendant owed no duty to station a flagman, or maintain gates or a light, at the highway crossing, and negligence cannot be predicated of the omission; and in reply to that request the court said: “ I will leave that to the jury.” The defendant excepted. Plaintiff’s Counsel: “I ask the court to charge the jury that they may find negligence from the absence of a light or gate or flagman, or some warning.” The court: “I have submitted that question as a matter of fact to the jury. If the jury say that the circumstances—the manner in which this road crosses the railroad, and the position of the railroad soutli of the crossing—are such that they would be liable to mislead people in the ordinary use of the highway, so that they would be likely to stray upon the railroad track, then it is for the jury to say whether or not it was negligence not to have either a cattle guard there, or some person to warn people to keep them from straying into this dangerous place.” Defendant excepts. The refusal to charge as requested, and the charge as made, were both erroneous. It was thus left to the jury to determine that the company was under obligation to maintain a flagman, gate, light or cattle guard at the crossing in question, and that the failure to do so was negligence. Such a rule has been condemned in many cases. “ The duty of posting flagmen, or having servants and agents, or placing gates or other obstructions, or of giving special or personal notice to travelers at railroad crossings, can only be imposed by the legislature. Courts and juries cannot, whatever may be thought by them of the convenience or necessity of such or other like precautions at particular crossings, hold the company to provide them under the penalty of being charged with negligence from the omission.” Weber v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 451-459. “Whether there is negligence depends upon the degree of care required and given in each particular case, irrespective of any particular mode. Whether the care was by a flagman, gates, or by any other equivalent mode, is of no importance. If it were established as law that the omission of any particular act which, from the amount of travel at crossings, a jury might think required by the public safety, was negligence, a railroad company would never know when it was safe from that imputation; nor, no matter how carefully it observed the requirements of the statute, or conducted itself in other respects, if it omitted any one act which the caprice, sympathy or prejudice of the jury might think required for the public safety, the omission would constitute negligence, and subject it to all the consequences." Beisiegelv. N. Y. C. Railroad Co., 40 N. Y. 9-26. “The defendants had no flagman at the crossing in question, and the plaintiffs claim that this was negligence in the defendants; while, on the other hand, the defendants requested the court to charge that the defendants were under no legal obligations to station a flagman or signalman at the cross: ing in question. ■ This was refused, and to the refusal, and to various parts of the charge on this subject, the defendants excepted. * * * I apprehend that railroad companies do not run their trains under the pressure of any such rule or law, and that the means which it is their legal duty to employ to prevent third persons from sustaining injury are not dependant upon any such broad discretion legally intrusted to a jury.” Grippen v. N. Y. C. & H. R. Railroad Co., 40 N. Y. 34-41. “ Under such a charge, the jury might find a flagman was a proper precaution, or gates, or that a man should run in front of the cars, or anything else which commended itself to the judgment of the jury. Such has been held not to be the measure of liability of the corporation in the situation of .the defendant.” Cumming v. Railroad Co., 104 N. Y. 669-671, 672 ; 5 St. Rep. 737. “ A railroad company is not bound, and owes no duty, so to station a flagman, and negligence cannot be predicated of the omission. * * * The final charge in this case left to the jury whether the company was, or was not, bound to have a flagman at the crossing, and whether the defendant should have had one there, and so permitted the jury to predicated negligence upon the admission. * * * For this error we think there should be a new trial.” Houghkirk v. Canal Co., 92 N. Y. 219-227, 228. These lengthy quotations are made because they manifest so clearly the error assigned by the defendant upon this appeal.

In relation to the cattle guards, the error is equally apparent The statute (2 Laws 1892, p. 2068, § 32) which requires their construction declares the penalty for a failure to comply with its requirements, and the damages which the plaintiff seeks in this action are not included in such consequences. Knight v. N. Y., L. E. & W. Railroad Co., 99 N. Y. 25. The judgment and order denying the motion for a new trial on the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.  