
    Josephine Vandewater, Adm’rx, Resp’t, v. The New York & New England R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    1. Railroads—Negligence—Signals at crossings.
    Upon the trial of an action to recover for the death of plaintiff’s husband while attempting to cross defendant’s tracks at a farm crossing, plaintiff was allowed to prove the failure of the engineer of the approaching train to blow a whistle or sound a bell at another crossing 3,000 feet away, and that it was customary for the engineers or firemen of defendant to do so. Held, error.
    2. Same.
    The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not impose the duty upon the company, and unless such duty is imposed by statute, the failure to give such signals cannot as a matter of law be regarded as a neglect of duty. (Maynard, J., dissents.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    
      Walter C. Anthony, for app'lt; Chas. Morschamer, for resp’t.
    
      
       Reversing 43 St. Rep., 430.
    
   Peckham, J.

The plaintiff’s intestate was killed at a farm crossing over the defendant’s railroad, near the village of Bishkill. He was in the act of driving across the track when he was struck and instantly killed by one of the engines of the defendant,, which was drawing its pay car.

The general direction of defendant’s road at this point is east and west. The engine attached to the pay car was coming from the east at the rate of forty or forty-five miles an hour, and at that speed passed a highway crossing called Yan Wyck’s, and then at a distance of a few hundred yards to the west of that crossing it passed the Fishkill depot, and continuing its very high speed passed along still towards the west about 1,600 feet, when it reached the farm crossing in question, and where the engine came in collision with the horse and wagon belonging to the plaintiff’s intestate, and threw him out of the wagon and killed him instantly.

The plaintiff; upon the trial gave evidence tending to show that no whistle was blown or bell sounded for the crossing of the highway east of the Fishkill depot, or for the depot itself, and none for the farm crossing where the accident occurred. This highway crossing was somewhere in the neighborhood of 2,000 feet east of the farm crossing. Evidence was also given tending to show that it was customary for the engineers or firemen of the engines to blow the whistle or ring the bell when approaching the highway crossing and also when coming to the depot of the defendant. The learned judge charged the jury that the company were bound to blow the whistle or sound the bell eighty rods before getting to the highway and continue it at intervals until the crossing was passed. He also said the deceased had a right to assume the company would do its duty with respect to the highway crossing, and if it did not sound the bell or blow the whistle at this crossing nnd the accident at the farm crossing was occasioned by that omission, then the jury might find a verdict of negligence against the company.

Proper exceptions to this charge were taken by counsel for defendant, who called the attention of the court to the fact that the statute imposing upon the company the duty of having the bell rung had been repealed. The court replied that it was in the Penal Code.. Defendant’s counsel said that the Penal Code did not apply in a civil action. The court then stated to the jury that it was just the same as if it were written in the law; that it was made a crime instead of imposing a liability for damages, and that the jury might find a verdict just the same as they could before the repeal. To this direction the counsel for defendant took .appropriate exception. The question of the omission to whistle or ring on approaching a highway crossing two thousand feet east •of the farm crossing at which the plaintiff’s intestate was killed, was thus made a most important factor in the case.

The effect of this charge was to permit the jury to find negligence from the mere omission to ring a bell or sound a whistle at the highway crossing, and the charge was based upon the assumption that the statute made it the duty of the company to make these signals at such crossing. In this we think the learned judge ■erred.

The statute imposing any duty upon the company to cause a Tell to be rung or a whistle sounded upon approaching a highway crossing has been in terms repealed, and the provision in the Penal Code does not leave the law the same as it was before the repeal. By § 39 of the General Railroad Act (chap. 140 of the Laws of 1850), provision was made for placing a bell on each locomotive and direction was given that it should be rung as therein stated, or a steam whistle was to be attached to each locomotive and to be sounded instead. Penalties upon the company neglecting were placed, which could be collected by the district attorney, and the company was made liable for all damages sustained by any person by reason of such neglect. By § 7 of chap. 282 of the Laws of 1854, some additions were made to the provisions under the act of 1850, and it was provided that in addition to the penalties imposed upon the company, every engineer in charge of an engine who neglected to obey the statute was to be subject to a fine and imprisonment in the county jail.

Subsequently the Penal Code was adopted and it went into operation on the 1st of December, 1882. Section 421 provided that the engineer of a locomotive who failed to ring the bell or sound the whistle upon it eighty rods, etc., should be guilty of a misdemeanor. Then the legislature by the act, chap. 593 of the Laws of 1886, repealed in so many words all the provisions in the general railroad act of 1850, and of the act of 1854, above cited, which made it the duty of the railroad company to cause the bell to be rung or the whistle to be sounded, or provided any penalties against the company for its neglect. The only statute upon the subject which remained at the time of the happening of the accident in question is to be found in § 421 of the Penal Code, already cited.

Whether it was really intended to repeal all the sections of the law by which the duty was imposed upon the railroad company to cause these signals to be given may perhaps be doubted, but the repeal is in such plain and peremptory language that courts cannot disregard it without a clear violation of a legislative enactment. The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not impose the duty upon the company, and unless such duty is imposed by statute the failure to' give such signals cannot as matter of law be regarded as a neglect of duty. Beisiegel v. Railroad Co., 40 N. Y., 9; S. C., 14 Abb. Pr., N. S., 29; Weber v. Central Hudson R. R, 58 N. Y., 451—459; Briggs v. R. R, 72 id., 26, 30.

Of course the companies still owe a duty to the public at such crossings, as elsewhere. That duty is to run their trains with care and caution, and when they cross such roads it may well be that the failure to give due warning by whistle or bell, or in some other way, would be held, under all the circumstances, to be a ^ failure to manage and run their train with proper care and caution for which they would be liable to a party injured if otherwise entitled to recover. Even when compelled by statute to make such signals, it is not necessarily a defense in all cases to prove that they were made. The making of the signals is the least the company can do, and in a given case it might not be enough. Harty v. Railroad, 42 N. Y., 468 ; Thompson v. Central Hudson R. R. Co., 110 id., 636; 16 St. Rep., 869.

When the duty to give signals at highway crossings was by statute imposed upon the railroad company, it was held that it did not apply in i'avor of one who was walking upon the track, but that it was intended .for the benefit of those who were travel-ling the highway. Harty v. R. R. Co., supra.

It may be that evidence of the omission to give any signals for the highway crossing would not be admissible as bearing upon the question of defendant’s negligence in running its train at the. farm crossing, 2,000 feet distant.

There are cases where evidence has been admitted showing the absence of customary signals at the places where usually they had been given, for the purpose of proving negligence on the part of the company. Whether this was a case where evidence of this nature should be admitted in favor of this plaintiff, and with regard to the highway crossing, is a question not now necessary to decide.

If the defendant was guilty of negligence in the manner of running its train over the farm crossing, it would be liable to a plaint-tiff otherwise entitled to recover. Upon a new trial all the facts can be shown which would enable the court or the jury to determine the question.

The judgment should be reversed and a new trial granted, costs to abide the event

All concur, Maynard, J., in result.

Maynard, J.,

dissents' from that part of the prevailing opinion which holds that the duty of the engineer to give a signal when approaching a highway crossing is not the duty of the company whose agent he is in running the engine; but concurs in the-result upon the ground that, as matter of law, it is not negligence in passing a farm crossing to omit to give the required signal at the highway crossing 2,000 feet away. It was a circumstance which the jury might consider in determining the degree of care to be exercised by the defendant in approaching the farm crossing."  