Lewis v. New York, L.E.&W.R. Co.

• Decision Date: 02 December 1890
• Citation: 26 N.E. 357,123 N.Y. 496
• Court: New York Court of Appeals Court of Appeals
• Parties: LEWIS v. NEW YORK, L. E. & W. R. CO.

123 N.Y. 496

26 N.E. 357

LEWIS

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, second department.

Action by George Lewis against the New York, Lake Erie & Western Railroad Company, for damages for personal injuries sustained by being struck by a train on defendant's track at a railroad crossing. Verdict and judgment for plaintiff. The general term affirmed the judgment, (5 N. Y. Supp. 313,) and defendant again appeals.

Lewis E. Carr, for appellant.

J. M. Gardner, for respondent.

FINCH, J.

We see no reason to doubt the correctness of the action of the trial court in refusing a nonsuit, and submitting to the jury the questions of negligence as questions of fact.

The only important exception grows out of the repeal of section 7, c. 282, Laws 1854. That section accomplished two things. It imposed upon railroad companies the duty of ringing the bell of the engine or blowing the whistle at 80 rods from the crossing at grade of a traveled public road, and made the companies responsible for damages resulting from that omission; and then it made the engineer who should omit the required signal guilty of a misdemeanor. This last provision was carried into the Penal Code, and left its presence in the act of 1854 no longer necessary. The general repealing act of 1886, (chapter 593, p. 838,) instead of merely repealing so much of the act of 1854 as had been reproduced in the Penal Code, repealed the whole of section 7, ‘to and including the words ‘by reason of such neglect.” It follows that, when the accident happened, in May, 1888, there was no statute making it the duty of a railroad company to give the specified signals at the required distance. Nevertheless the court, in its charge to the jury, did assume, as matter of law, the existence of such a duty, and submitted the question of its omission or performance. To this charge the appellant's counsel claims that he excepted, and assigns that exception as a ground of reversal.

I think it quite clear that he did not raise that question. He contended quite persistently that the road which crossed the tracks at the place of the accident was not a public highway, but a private crossing, to which the mandate of the statute did not apply; and, when he excepted to the charge which held the contrary, his language shows that he intended to raise, and was understood to raise, not the question of the existence of the statute, but that of its application to the case in hand. He closed his exception to the charge with the statement: ‘I except to that as applicable to this case.’ In answer to the exception the court said: ‘I spoke of it as a public highway. Is there a point about it?’ To which the defendant's counsel answered: ‘I claim that there is no proof that it is a public highway.’ The court retorted: ‘It has been used for twenty-five years for passengers there.’ To which the defendant's counsel replied: ‘It has been used by people about there. We say that the law applies only to highways that are regularly laid out as highways of the state.’ At this point the precise nature of the defendant's contention became apparent. Its counsel conceded the existence of the law to which the court had referred, but denied its application to the crossing in question. The court so understood it, and, after the evidence of user which had been given, seemed somewhat surprised, but finally submitted the question whether the crossing was public or private, saying: ‘If it is a highway, gentlemen, the law applies to it. A highway may be established by user, and it may have but one end. I did not suppose there was any doubt about it. But you can go to the jury on that question.’ The defendant's counsel again excepted, and said: ‘I take exception to that statement to the jury, and I ask your honor to charge that the statutory duty of blowing a whistle or ringing a bell at road crossings only applies to public highways, and that it does not apply to the highway crossing in this case.’ The court replied: ‘So charged; that is, it does not apply to private crossings.’ With this final direction the counsel was seemingly content,...