40 N.Y. 34, Grippen v. New York Central Railroad Co.

Citation:40 N.Y. 34
Party Name:AVERILL N. GRIPPEN, Administrator, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
Case Date:March 01, 1869
Court:New York Court of Appeals
 
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40 N.Y. 34

AVERILL N. GRIPPEN, Administrator, Respondent,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

New York Court of Appeal

March 1, 1869

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COUNSEL

S. W. Jackson, for the appellant.

William A. Beach, for the respondent.

WOODRUFF, J.

Except upon one material question, viz., whether the bell, on the defendants' locomotive, was rung, as required by statute, there is very little, if any, conflicting testimony in this case.

On a stormy, blustering, snowing night, the plaintiff's intestate, in a one horse sleigh (or cutter), was driving southwardly down North Second street, in the city of Troy, at the rate of "four or five miles an hour." This is according to the testimony of the principal witness for the plaintiff. Another describes the rate as "faster than a person would ordinarily drive." Another, "They were going on a trot, an ordinary gait." One of defendants' witnesses says, "at a pretty rapid rate; that is, a good ordinary drive; a little faster, perhaps." Another, "They were driving on an ordinary trot."

At the same time, the defendants' servants, engaged in depositing cars to be unloaded, and picking up empty freight cars, were moving a train of six cars about one hundred and sixty feet in length backwards, eastwardly along the railroad track, called the South branch, crossing North Second street at a rate "not exceeding four miles an hour." This is according to the testimony of the defendants' principal witness. Another stated, "The train was going about as fast as a man could walk." Another, "It was going about as fast as a man could walk." One of the plaintiff's witnesses says, "They were going like a fast walk; I could walk along with them." Another, "I think the cars were going a little faster than a

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man could walk; " and another, "I think the cars were going faster than a man would naturally walk."

Very shortly before the cutter crossed this south branch railroad track, and while a few feet north of it, the horse "shied" to the east, sprung forward across the track, and the intestate and his brother were thrown out; the intestate falling about forty-six feet south of the track, fatally injured; and the horse and cutter continued down the street. The cars crossed the street at the same, or very nearly the same moment; and the testimony of the brother, and some other witnesses, tended to show that the foremost of the cars hit the hind end of the cutter as it passed, and so caused the accident and injury to the intestate. For this injury, the present action is brought.

The principal questions relate to the duty of the defendants to give warning of the approach of trains; whether it is their duty to keep a watchman or flagman at crossings; and whether the plaintiff's intestate was himself guilty of negligence, contributing to the collision, which caused his injury.

The statute requires (beside sign boards at crossings, &c., as to which there is no question in this case,) that a bell shall be placed on each locomotive engine run on any railroad, and rung at the distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, on the same level with the railroad, and be kept ringing, until it shall have crossed such road or street; or a steam whistle may be attached to such engine, and be sounded, except in cities. Penalties are annexed to a neglect of this requirement; and the railroad corporation is declared liable for all damages, which shall be sustained by any person, "by reason of such neglect."

Upon the question, whether, at the time the train in question approached and crossed North Second street, the bell upon the engine was rung, the evidence was such that, I think, it was not erroneous to submit the case to the jury; and if they found that the bell was not so rung, and that the injury to the intestate was sustained by reason of that neglect,

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the plaintiffs were entitled to recover, subject, of course, to the power of the court below to grant a new trial, if the verdict was deemed against the weight of the evidence. It is true, that three of the defendants' servants--one standing on the ground, and two upon the train--swear positively that the bell was ringing; one of them, that he was himself ringing the bell; and another witness, who was on the east side of North Second street, a mere spectator, swears, with equal positiveness, that the bell was ringing. On the other hand, four witnesses, being within a few feet of the crossing, say that they did not hear the bell; and two of the defendants' servants--one on the train, and one not far from the crossings--did not hear, or, at all events, did not notice the ringing of the bell.

However I may think, upon a perusal of the printed testimony, that the preponderance is in support of the defendants' allegation, that the bell was rung, I cannot say that, if the case had gone to the jury under correct instructions, as to the law governing the subject, the judgment should be reversed for error in law, because the jury were permitted to pass upon that question.

The counsel for the appellant, on the argument, says that no serious question was made on the trial as to the fact, so positively sworn to, that the bell was rung; but that the actual contest there was, in regard to the effect of ringing the bell on the engine, when such engine was pushing six freight ears backwards over the crossing, and as to the duty of the defendants to give other warning of the approach of those cars.

This is not improbable. I have, nevertheless, referred to these proofs, for the purpose of showing the precise state of the case upon which the instruction, upon this point, was given to the jury, which is the subject of exception by the defendants. That instruction was: "The object of ringing the bell is to have it heard. It is a signal of the approach of the cars at the crossings, and it should therefore be rung under circumstances likely to give notice to passers by, if it is to be of any use. The literal provision of the statute may

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be, perhaps, satisfied by having it rung at its proper place on the car, and while crossing over any particular position. There may be circumstances which require that this particular signal, or some other signal calculated to give notice to passers by, whether on foot or with a vehicle, should be given at a crossing. You are to determine whet signal would be sufficient, and whether such signal was in this case given; " and when the especial attention of the court was called by the defendants to this language, it was further added: "The object of the requirement of the ringing of the bell is to give notice to travelers, and perhaps others, of the approach of the train. The bell should be rung under such circumstances, as that it may be heard and give the requisite notice; otherwise the object of the requirement is not complied with."

It is not very clear to my mind, what was intended by this instruction; and yet it is very clear that, according to my views of the law on the subject, it was erroneous, and eminently adapted to mislead the jury. It tended, I think, to an entirely mistaken interpretation of the statute, declared a further peremptory duty of the defendants to give signals of the approach of their trains to a crossing, and, finally, in the broadest terms, left it to the jury to say, what signals would be sufficient to give notice to others, and whether such signal was in this case given.

It contains a doubt whether ringing the bell on the engine is a sufficient compliance with the statute, and declares that the bell should be rung under such circumstances, that it may be heard, and give the requisite notice; otherwise, the object of the requirement is not complied with. If this means anything less, in its connection with the present case, than that the bell should be rung at some other place, than on the engine, I am unable to understand it. And any construction of this language, which imports that ringing the bell on the engine, is not a full and complete compliance with the statute, is erroneous. The language of the statute is explicit: "A bell shall be placed on each locomotive engine * * and rung * * and be kept ringing," &c.; and the requirement that

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the bell shall be there, is just as absolute and unqualified, as the requirement that it shall be rung.

The instruction raises three questions:

First. Is our statute complied with by the ringing of the bell upon the locomotive engine?

Second. Does any rule of law require the railroad company to ring a bell anywhere else, to give notice of the approach of a train?

Third. Are railroad companies bound, besides and beyond complying with the requirements of the statute, to give such signals of the approach of their trains, as a jury may deem sufficient to give notice to passers at a crossing?

The first question is answered, I think, already. The terms of the statute are explicit. It requires the bell to be upon the locomotive, and to be rung; and if it be rung, and in the place where the statute directs that it shall be placed, that is done, which the statute requires.

On this point, I do not, in this place, assume to say what the defendants should do, when running a train backwards; in which case, cars are moved toward the crossing, which are nearer thereto, and quite distant from the bell. Here I speak of the construction and legal effect of the statute. If a train moving backwards is within the statute, then ringing the bell upon the engine is compliance with the statute, which in no wise provides for ringing a bell anywhere else.

If a train moving backwards is not within the statute, then whether any and what signals of its...

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