
    Eugenia E. Petrie, as Administratrix, etc., of Charles A. Petrie, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — when a question is pi'esented for the jury, whether a bell and whistle are adequate signals — duty of a raib'oad company as to giving signals —form of objection.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, who was killed at a highway crossing by one of the defendant’s trains, it appeared that the train approached the crossing upon a sharp curve and in a cut through solid rock for a distance of about sixty rods; that the highway which crossed the railroad tracks at an angle of forty-five degrees was also cut through rock and earth to a point quite near the track at which place the cut was about nine feet deep; that the view of the track in the direction from which the train approached was obscured to a considerable extent by the presence of several buildings and an apple orchard and the configuration of the ground. It also appeared that the railroad tracks crossed the highway upon a down grade so sharp as to enable a train to move at a high rate of speed from its own momentum, and that the train which struck the plaintiff’s intestate was thus proceeding at the time of the accident.
    
      Held, that it might well be doubted whether the ringing of a bell or the blowing of a steam whistle would have apprised the intestate of the danger which threatened him, and that it was proper for the trial court to permit the jury to say whether suoh signals, if given, were adequate and were all that could bo required of the defendant under the circumstances;
    That the charge delivered by the trial court, when considered in its entirety, was not open to the criticism that it permitted the j ury to speculate as to what signals were adequate and necessary.
    
      Semble, that such a criticism is not available under an exception which does not point out the particular vice complained of in such a way as to enable the trial justice to correct the alleged error.
    The duty imposed upon a railroad company of giving due and adequate warnings of the approach of its trains to a highway crossing still exists, notwithstanding the repeal of the statute specifying the particular manner in which the duty should be performed.
    McLennan and Williams, JJ., dissented.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 13th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      On the 29th day of July, 1899, the plaintiff’s intestate, Charles A. Petrie, was killed at a railroad crossing known as “ Rock Cut Crossing,” situate in the village of Clayton, Jefferson county, N. Y., by coming into collision with one of the defendant’s locomotives.
    Thé intestate, with his family, consisting of his wife, the plaintiff herein, and two children, a son eighteen years of age and a daughter aged twenty, occupied a farm in the town of Clayton, located about a mile from the above-mentioned crossing, where he had •resided for upwards of eleven years. He left his home on the morning in question at about six o’clock with a team of horses attached to a platform wagon, and drove to the neighboring village of Lafargeville, where he delivered a number of calves which he had sold to .a party in that village. After transacting his business at Lafargeville he started for home, reaching the crossing at twenty-two minutes after ten o’clock'in the forenoon, and while attempting to cross the railroad track was struck by a local passenger traiin and killed.
    At the point of crossing the highway runs east and west and the railroad, vdiicli has but a single track, crosses it at an angle of ' about forty-five degrees, running northwest and southeast.
    The train in question was proceeding northwester^ and was about ten minutes behind time. Its schedule rate of speed was forty miles an hour and there was evidence tending to show that it was running at a much faster rate. There was also evidence from which the jury were at liberty to find that 'not only were the customary signals omitted, but that no other warning of the approach of the train was given in their stead.'
    A verdict of $3,500 was rendered in favor of the plaintiff, and from the judgment entered thereon^ as well as from an order denying the defendant’s motion for a new trial upon the minutes of the court, this appeal is taken.
    
      Uenry Purcell, for the appellant.
    
      John' N. Carlisle, for the respondent.
   Adams, P. J.:

The evidence of the defendant’s negligence and of the absence of contributory negligence upon the part of the plaintiff’s intestate, while perhaps not entirely convincing, was, nevertheless, sufficient to justify the trial court in submitting those questions to the jury, ¡and, consequently, we do not feel at liberty to set aside their verdict as against the weight of evidence. The only other questions which require our consideration arise out of exceptions taken to a single portion of the charge of the court, as well as to refusals to charge in accordance with certain requests of the defendant’s counsel.

In the body of the charge the learned trial justice, in discussing the evidence relating to the giving of signals by the train as it approached the crossing, used this language, viz.: “ If you find that no signal whatever was given, I apprehend that you will have no difficulty in coming to the conclusion that the defendant was negligent. If you find that a signal was given at the whistling post and that the bell was thereafter continuously rung, I do not say that I can ■charge you absolutely that those signals would justify, as a matter of law, a finding that the defendant was free from negligence. Just what signals are to be given under the circumstances of this case, just what signal is adequate and necessary, is for you to determine.”

To this portion of the charge an exception was taken in due time by the defendant’s counsel, who thereupon requested the court to charge: That the defendant had the right to run its trains at any rate of speed over the crossing in question, providing it gave warning of its approach by sounding the whistle at the whistling post and ringing the bell from there to the crossing.” This request being refused, the defendant’s counsel then asked the court to charge: That if the jury find that the whistle was sounded by two long and two short blasts at the whistling post and that the bell was rung from there to the crossing, and the emergency signal given as testified, such warning was adequate notice of the approach of the train, and the plaintiff cannot recover; ” which request was also refused by the court, whereupon counsel submitted still another request in these words, viz.: I ask your Honor to charge the jury if on the approach of the train to the crossing, commencing at the whistling post the whistle for the crossing was blown and the bell was rung from there to the crossing, and subsequently, before reaching the crossing, the emergency signals, the danger signals, were given as testified, that the defendant did all it could under the circumstances of this case to relieve itself from negligence and to warn the deceased of the approach of the train to the crossing and, therefore, there can be no recovery ; ” and the court declining to charge in accordance with such request, an exception to this, as well as to the other refusals, was duly taken.

It will be observed that all these exceptions relate to and involve the same subject-matter, viz., the duty which the law imposes upon a railroad company to give due and adequate warning of the approach of its trains to a highway crossing.

This Iduty, which was formerly regulated, in a large measure, by statute, is one which still exists, notwithstanding the repeal of the statute Specifying the particular manner in which the duty was to be performed. In other words, a railroad company now, as formerly, owes a duty to the public to run its trains with care and caution at highway crossings, and its omission to give warning of an approaching train by what were known as the “ statutory signals,” or in some other equally efficient manner, may properly be considered in all crossing cases as bearing upon the question of the company’s negligence. ( Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583.)

The learned counsel for the defendant in formulating his- requests apparently assumed that notwithstanding the repeal of the statute requiring the bell to be rung or whistle sounded by a train when approaching a. crossing, the giving of those signals would absolve the defendant from the charge of negligence in the operation of its railroad. We do not, however, think this assumption is justified by the rule which now obtains; for while it is not impossible to; conceive of a case where the employment of such signals would be held sufficient, as matter of law, yet as we understand the rule it is now, generally speaking, a question of fact for the jury to determine whether under all the circumstances of a given case a railroad company should have adopted some other precautions than those which were actually employed in the operation and management of its train while approaching a highway crossing. (Cumming v. Brooklyn City R. R. Co., 104 N. Y. 669.)

We do not deem it necessary, however, for the purposes of this review, to apply the rule as broadly as we have just stated it, for we think that the facts of the case are such as would have justified the court in leaving it to the jury to say whether the ringing of the bell, or the sounding of the whistle, or both, -would have been such a warning' as would have relieved the defendant from a charge of negligence, even if the former statute were still in existence. (Harty v. Central R. R. Co. of N. J., 42 N. Y. 468; Dyer v. Erie Ry. Co., 71 id. 228; Thompson v. N. Y. C. & H. R. R. R. Co., 110 id. 636; Finn v. Delaware, L. & W. R. R. Co., 42 App. Div. 524.)

It appears that the defendant’s track approaches the crossing from the southeast upon a sharp curve and in a cut through solid rock for a distance of about sixty rods ; that the highway is likewise cut through rock and earth to a point quite near the track, at which place the cut is very nearly nine feet in depth. The evidence also tended to establish the presence of several buildings and an apple orchard which, together with the configuration of the several approaches, so obstructed the view that a person standing upon the easterly rail of the railroad track, at the crossing, could see a train approaching from the southeast for a distance of only 450 feet or thereabouts, and this view gradually decreased in extent as he passed 'east until he reached a point 22 feet from the easterly rail, when the tracks could be seen for a distance of but 130 feet, and then they passed out of sight entirely until a point was reached upon the highway from which a view of an approaching train could be obtained before it entered the cut.

It was also proven that tlie railroad tracks crossed the highway upon a down grade, so sharp as to enable a train to move at a high rate of speed from its own momentum, and that the train with which the plaintiff’s intestate collided was thus proceeding at the time of the accident.

This being the situation which confronted the plaintiff’s intestate as he was about to cross the defendant’s track, it may well be doubted whether the ringing of a bell or the blowing of a steam whistle would have apprised him of the danger which threatened him, and, if so, then it was entirely proper for the trial court, in any view of the case, to permit the jury to say whether such signals, even if given, were adequate and all that could have been required of the defendant under the circumstances.

It is said, however, that the court went farther than this and allowed the jury to speculate as to what signals were adequate and necessary. One answer, and a sufficient one^ to this proposition is, that | the defendant’s exception to this portion of the charge was not sufficiently explicit to fairly raise such a question as the one just adverted to, inasmuch as it did not point out the particular vice complained of in such a way as enable the trial justice to correct the error, if one was committed. (Cumming v. Brooklyn Gity R. R. Co., supra.)

But, (taking the. charge in its entirety, we do not think it is' open to the criticism made by counsel. The learned trial justice did not direct the jury to determine the character of additional signals, or what they should be. He did not even say that other signals ought to have been given; he simply left it to them to say “ whether or not, under the circumstances of the case, considering the speed of the train, as you shall find it to be, considering the nature and condition of this crossing, as you shall find it to be, whether or not the defendant gave a timely and reasonable warning of the approach of its train,” adding that if it did their verdict must be for the defendant ; and upon the conclusion of the principal charge the court, at the request of the plaintiff’s counsel, further instructed the jury that it was for them to say “ whether any Warning signals that they may find ■ were given were sufficient to notify the deceased of the approach of the said train.”

We think this is a correct statement of the rule applicable to the circumstances of this case, and that when taken in connection with the preceding instruction, it so completely modified the language complained of that the jury could not have misapprehended the simple question which they were called upon to consider and determine. (Lunham v. Hafner, 5 App. Div. 480.)

It follows that the judgment and order appealed from should be affirmed.!

Judgment and order affirmed, with costs.

Spring and Rumsey, JJ., concurred; McLennan and Williams, JJ., dissented.

McLennan, J. (dissenting):

The evidence in this case tending to establish negligence on the part of the defendant was directed exclusively to proving that the whistle Was not sounded or the bell rung as the train approached the crossing where the accident occurred, and it was urged that the omission to give such warning, in view of the great speed at which the train was running, established negligence on the part of the defendant. The learned trial judge charged that negligence could not be predicated upon the speed at which the train was moving or upon the fact that a flagman was not stationed at the crossing.

Under those circumstances I think that the portion of the charge referred to in the prevailing opinion was erroneous, for the reason that it permitted the jury to speculate as to whether or not the defendant should have done something else, not in any manner pointed out or indicated by the evidence in the case, in order to relieve itself from the charge of .negligence, even if they found that the whistle was sounded at the' whistling post and the bell rung continuously from that point to the crossing. There was no evidence tending to show that if such signals had been given they could not have been readily heard by the plaintiff’s intestate. The sole issue as to defendant’s negligence was whether or not those or any signals were given, but the jury by the charge and by the refusal to charge as requested were given to understand that they had a right to conclude that the defendant should have given some other or different warning, which was in no manner indicated by the evidence, and that for its omission to give such other or different warning they had a right to base a finding of negligence.

We think it is not the rule that a jury in a negligence case may be told, in substance, if you find that the defendant did all the things which the plaintiff by the evidence claims it ought to have done, still it is for you to determine whether or not the defendant should have done other things not pointed out or indicated by the evidence, and if you find that it should you may find it guilty of negligence because of its failure to do such other acts. Under such a ruling a defendant might be charged with negligence by a jury without knowing or having the means of knowing- upon what actor omission such charge was based, and, therefore, would be deprived of any means of reviewing such determination or of determining whether it was properly founded or not. In the case at bar suppose the jury had determined and based its finding of negligence on the part of the defendant upon the fact that it did not continuously blow the whistle and ring the bell from a point several miles distant from the crossing. Clearly such finding would not be permitted to stand!; yet, so far as appears, the verdict of the jury in this case may have been based upon that proposition or one equally untenable, for, as we have seen, the jury were told in substance that if they found that the whistle was blown at the whistling post and the bell rung continuously from that point to the crossing, as claimed by the defendant and denied by the plaintiff, and although there was no evidence tending to show that if such' signals had been given they could not readily have been heard at the. crossing, still it was within the province of the jury to determine what other signals, in no manner specified. in the evidence or referred to by the court, should have been given in order to relieve the defendant from the charge of negligence. This, we think, clearly left it to the jury to speculate and dratv upon their respective imaginations for the purpose of determining what else ought to have been done by the defendant in order to make the operation of defendant’s trains at the place in question reasonably safe.

Our conclusion, is that the charge and refusal to charge as requested, which ¡are set forth at length in the prevailing opinion, present reversible error, and that the judgment and order appealed from should be reversed and a new trial granted.

Williams, J., concurred.

Judgment and order affirmed, with costs.  