
    James M. Petrie, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    1. Railroad—Negligence.
    In an action against a railroad company to recover damages for personal injuries caused by defendant’s engine striking plaintiff while in the act of driving across its tracks, there was a conflict of evidence as to whether cars were standing on the tracks which obstructed plaintiff’s view. Held, that the question was one for the jury.
    
      2. Same—Signals.
    In such case, the complaint alleged that the train approached the crossing without ringiug a bell or blowing a whistle, and upon the trial evidence was given to show that the bell was not rung or the whistle sounded; the court charged that it was the duty of defendant, prescribed by law, to ring a bell or blow a whistle as its train came within eighty rods of a crossing, and refused to charge ‘ ‘ that the defendant was not bound by law to blow a whistle or sound a bell; ” to all of which defendant excepted. Meld, that the law requiring a railroad company to ring a bell or blow a whistle when its trains arrived within eighty rods of a crossing having been repealed, to charge that the same was the duty of defendant was an error requiring a reversal of a judgment for plaintiff.
    Appeal from a judgment entered upon a verdict taken at the Herkimer circuit, and from an order denying a motion for a new trial, made upon the minutes. The verdict was for the plaintiff in the sum of $1,850. Plaintiff was injured while crossing the tracks of the defendant at Bellinger street, the most westerly street in the village of Herkimer, which passed north and south across the tracks of the defendant, which run east and west, by a passenger train coming from the west at 11:44 A. M. of August 2d, 1890.
    
      C. D. Prescott, for app’lt; Devendorf & Smith, for resp’t.
   Hardest, P. J.

While the plaintiff was traveling along Bellinger street, situated in the westerly part of the village of Herkimer, with his team, on the north side of the defendant’s tracks, he approached the fifth track and passed it, and passed over the fourth, third, second, and while passing over track number one his vehicle was struck and he received the injuries complained of, and for which he recovered a verdict of $1,850. West of Bellinger street, and on the northerly side of defendant's road, freight cars were standing on a branch a short distance from the crossing. Some evidence was given tending to show that when the plaintiff approached the crossing he looked to see whether there were any trains approaching from the west, and that discovering none he drove upon the crossing, and when upon track number one he heard the shriek of a whistle of an engine coming from the west, and he then slapped his horses with the lines and they jumped, but with not sufficient force to clear the vehicle from the engine, and the plaintiff received the injuries mentioned in the evidence and was rendered unconscious. Evidence was given tending to show that in addition to the standing cars on the branch, there was a coal shed, coal office and hen house which may have obstructed the view of the plaintiff. There was some evidence given by the defendant to the effect that there were no cars then on the branch. There being a conflict as to whether the cars were standing on the track which obstructed the view as claimed by the plaintiff, that question was one for the jury. Bleyle v. N. Y. C.& H. R. R. R. Co., 11 St. Rep., 585; S. C., affirmed, 113 N. Y., 626; 22 St. Rep., 993; Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 652 ; 5 St. Rep., 574. In Greany v. The Long Island Railroad Co., 101 N. Y, 419, it was said, viz.: “Where in such an action there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question as to con-tributary negligence is for the jury. While a person approaching a crossing is bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances, his failure to see an approaching train does not of itself discharge the company from liability for negligence on its part in omitting the statutory signal.” In closing the opinion in that case the learned judge who delivered it observed: “ Whether she looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether upon the whole and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” Upon the whole evidence we are of the opinion that the question whether the plaintiff was guilty of contributory negligence or not was one for the jury, and that no error was committed in refusing to non-suit the plaintiff.

(2) In the complaint it is averred that the train approached the crossing “ at a speed of more than forty miles an hour, and without ringing a bell or blowing a whistle, and, without any negligence on the part of the plaintiff, run the said engine, locomotive and train of cars against the plaintiff, and .striking plaintiff and plaintiff’s wagon and team of horses, throwing plaintiff from the said wagon with great force, by reason of all which plaintiff was greatly injured, etc.” Upon the trial evidence was given to show that the bell was not rung or the whistle sounded during the distance next westerly eighty rods from the crossing. In the course of the charge delivered by the learned trial judge, he observed: “ There is one thing which it was its duty to do. One guard which the laws have provided for the public as against these great railway corporations as they come to highways is a provision that eighty rods at least from the point of the crossing they shall either sound a whistle, and continue to sound it at intervals from that time until they reach the crossing; or from this point eighty rods away they shall ring a bell, and continue to ring it until the crossing is reached. That is an obligation on the part of this defendant. If the evidence satisfies you that this bell was not rung, then the defendant was guilty of omission of duty; and if you can infer that it was the want of that sound which led the plaintiff to go on as he did, then you will have a right to find for the plaintiff.” He also told the jury in a later portion of the charge as follows: “It is only in case you can find from the evidence (weighing it with and bringing to bear upon it your best judgment and conscience) that the bell was not rung that you can find for the plaintiff. If in this case you come to the conclusion that the bell is not sufficiently proved not to have been rung, then your verdict will be for the defendant.” Hear the close of the charge the defendant’s counsel requested the court to charge as follows: “ That the defendant was not bound by law to blow a whistle or sound a bell.” This the court refused to charge, and to such refusal defendant duly excepted. At a later stage the defendant requested the court to charge : “ That the defendant was not bound by law to blow a whistle or sound a bell.” This the court refused to charge, and to such refusal the defendant duly excepted. Thereupon the defendant excepted “ to that part of the charge in which it is charged that the defendant was under obligation to ring its bell or sound its whistle at least eighty rods when approaching this crossing.”

Our attention is called to Lewis v. N. Y., L. E. & W. R. R. Co., 128 N. Y, 496 ; 34 St. Rep., 373, in which case it was assumed that the statute of 1854, imposing upon railroad companies the duty of ringing a bell or blowing a whistle at eighty rods from a crossing and grade of the traveled public road, was repealed by the general repealing act of 1886. (Chapter 593 of the Laws of 1886.) And it is argued from that case that inasmuch as the attention of the trial iudge in the case in hand was not called explicitly to the fact that such repealing statute had been passed, that the exceptions may be disregarded. In the Lewis case, while the court’s attention was not called to the repeal of' the provision, it was “ conceded the original statute was in force," and the defendant, during the trial of that case, denied its application to the case then before the court. Under those circumstances it was held that the exception taken might be disregarded ; and in the course of the opinion in that case, Finch, J., says: 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 reached the point now sought to be made.” In the case before us no such concession was made ; on the contrary the learned counsel for the defendant, by an affirmative request, and an exception taken to the refusal thereof, and by excepting to the language of the charge in respect to the ringing of the bell or sounding the whistle as given, seems to have squarely availed himself of the position that the court was in error in regard to the law relating to the subject of ringing a bell or sounding a whistle.

In Kane v. The N. Y., N. H & H. R. R. Co., 132 N. Y, 160 ; S. C., 43 St. Rep., 497, it appears that a request was made to the court to charge that the defendant was not bound as a matter of law either to ring its bell or to blow its whistle, and that the request was refused and an exception was taken. In that case the plaintiff did not claim that the defendant was liable because of its failure to ring a bell or sound a whistle, but the sole ground of liability alleged in the complaint and proved on the trial was the mismanagement of the gates.

Under such circumstances it was said by the learned judge who delivered the opinion, that “ whether the bell was rung not having been made an issue on the trial, and the defendant’s liability for the injury not being predicated upon the failure to ring a bell or sound a whistle, it was- not error for the court to refuse to charge as requested.” But, as we have seen, in this case, the plaintiff relied upon the allegation in the complaint that the bell was not rung and the whistle was not sounded, and upon that allegation gave evidence from which the j ury were asked to find that the defendant had been guilty of negligence, thus making this case different from the Kane case. Nor do we think the exceptions taken by the defendant can be disregarded because of § 421 of the Penal Code. That section imposes a burden or duty upon an engineer “ driving a locomotive on any railway in this state,” and provides that he shall be guilty of a misdemeanor if he “ fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or sounding such whistle at intervals until such locomotive, and the train to which the locomotive is attached, shall have completely crossed such road or street.” That statute differs quite essentially from the provisions of the Laws of 1854, which imposes a duty upon the corporation itself. See chap. 282 of the Laws of 1854, § 7, p. 611.

Chapter 593 of the Laws of 1886 repealed “ the first paragraph of § 7 of chapter 282, viz.: from the beginning of said section to and including the words ‘ by reason of such neglect’ ” In chap-565 of the Laws of 1890, that portion of chapter 282 of the Laws of 1854 embraced in §§ 4 to 15 both inclusive, and §§ 17 and 18, were repealed, and ,the language found in § 181 of the act of 1890 was not intended to continue in force or revive the provisions of that part of § 7 of the Laws of 1854 which was repealed by the statute of 1886. See Session Laws of 1890, p. 1134. We think that part of the charge which instructed the jury that it was the duty of the railroad company to ring its bell or sound its whistle eighty rods before approaching the crossing in question, to which an exception was taken, was erroneous, and that the exception presents an error requiring a reversal of the order and judgment.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event

Martin and Merwin, JJ., concur.  