
    Thomas W. Case, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Railroad crossing — failure to home cattle gua/rd, gate or flagman- — -not negligence unless required by statute — absence of, not to be considered by the jury — 'penalty.
    
    Upon the trial of an action brought to recover damag'es alleged to have resulted from injuries to a horse and wagon struck by the defendant’s locomotive, the defendant requested the court to charge the jury that it owed no duty to station a flagman or maintain gates or a light at a highway crossing, and that ' negligence could not be predicated of the omission. In reply the court stated that he would leave that to the jury.
    The plaintiff’s counsel asked the court to charge the jury that it might find negligence from the absence of a light, or gate, or flagman, or some warning.
    The court substantially so charged.
    
      Held, that the refusal to charge as requested, and the charge as made, were both erroneous.
    The statute which requires the construction of a cattle guard at a railroad crossing' declares the penalty for a failure to comply with its requirements, and such penalty does not include damages for injuries to personal property.
    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 Rockland on the 29th day of September, 1893, upon the verdict of a jury for $165, after a trial at the Rockland County Circuit, and also from an order entered in said clerk’s office on the 11th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    
      This action was brought to recover damages alleged to have been sustained by the plaintiff while driving along a public highway with a horse and buggy, by reason of the failure of the defendant to provide gates or a flagman at a railroad crossing, and of its failure to maintain cattle guards or a light thereat. The horse which the plaintiff was driving got upon the track of the roadbed of the railroad south of the highway, and the wagon was struck by a locomotive and injured, the horse being also injured.
    
      Herbert H Kimvey, for the appellant.
    
      A. 8. Tomplcms, for the respondent.
   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 that negligence could not 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 OouNSEL.— 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 Couet. — -1 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 crossed the railroad, and the position of the railroad south 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 railway 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 for the omission.” (Weber v. N. Y C. & H. R. R. R. 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, by 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 reqidred by the public safety, was negligence, a railroad company would never know when it was safe from that imputation. For, 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, or 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.” (Beisiegel v. N. Y. C. R. R. 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 crossing 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 of law, and that the means which it is their legal duty to employ to prevent third persons from sustaining injury are not dependent upon any such broad discretion legally intrusted to a jury.” (Grippen v. N. Y. C. R. R. 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 should commend itself to the judgment of the jury. Such has been held not to be the measure of liability of a corporation in tbe situation of defendant.” (Cumming v. Brooklyn City Railroad Co., 104 N. Y. 671, 672.)

“ A railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission. * * *

Tbe final charge in this case left to tbe jury whether tbe company was or was not bound to have a flagman at tbe crossing, and whether the defendant should have had one there, and so permitted tbe jury to predicate negligence upon tbe omission. * * * For this error we think there should be a new trial.” (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219-228.)

These lengthy quotations are made because they manifest so clearly the error assigned by tbe defendant upon this appeal.

In relation to the cattle guards the error is equally apparent. The statute 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. R. R. Co., 99 N. Y. 28.) The judgment and order denying tbe motion for a- new trial on the minutes of tbe court should be reversed and a new trial granted, with costs to abide tbe event.

Cullen and Peatt, JJ., concurred.

Judgment and order denying motion for new trial reversed and new trial granted, costs to abide event.  