Vandewater v. New York & N.E.R. Co.

• Decision Date: 29 November 1892
• Court: New York Court of Appeals Court of Appeals
• Parties: VANDEWATER v. NEW YORK & N. E. R. CO.

135 N.Y. 583

32 N.E. 636

VANDEWATER

v.NEW YORK & N. E. R. CO.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, second department.

Action by Josephine Vandewater, administratrix, etc., against the New York & New England Railroad Company. Judgment for plaintiff was affirmed by the general term, and defendant appeals. Reversed.

Maynard, J., dissenting.

Walter C. Anthony, for appellant.

Chas. Morschauser, for respondent.

PECKHAM, J.

The plaintiff's intestate was killed at a farm crossing over the defendant's railroad near the village of Fishkill. 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 40 or 45 miles an hour, and at that speed passed a highway crossing called ‘Van 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 high way 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 80 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, and 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 2,000 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 bell to berung 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 section 39 of the general railroad act (chapter 140, Laws 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 becollected by the district attorney, and the company was made liable for all damages sustained by any person by reason of such neglect. By section 7 of shapter 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...