Gardner v. N.Y. & N. E. R. Co.

• Citation: 17 R.I. 790,24 A. 831
• Parties: GARDNER v. NEW YORK & N. E. R. CO.
• Decision Date: 16 July 1892
• Court: United States State Supreme Court of Rhode Island

24 A. 831

17 R.I. 790

GARDNER

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

Supreme Court of Rhode Island.

July 16, 1892.

Trespass on the case by Franklin P. Gardner against the New York & New England Railroad Company for personal injuries. On demurrer to a count in the declaration. Demurrer overruled.

George T. Brown and Clarke H. Johnson, for plaintiff.

William G. Roelker, for defendant.

TILLINGHAST, J. This is an action of trespass on the case to recover damages for injuries alleged to have been sustained by the negligence of the defendant corporation. The accident occurred at a grade crossing on the defendant's road at Danielsonville, in the state of Connecticut, and the third count of the plaintiff's declaration is based upon sections 3553 and 3554 of the General Statutes of said state of Connecticut, which are set forth in said count. These sections are as follows: "Sec. 3553. Every engine used upon any railroad shall be supplied with a bell of at least thirty-five pounds weight, and a suitable steam whistle, which bell and whistle shall be so attached to such engine as to be conveniently accessible to the engineer, and in good order for use. Sec. 3554. Every person controlling the motions of any engine upon any railroad shall commence sounding the bell or steam whistle attached to such engine when such engine shall be approaching, and within eighty rods of the place where said railroad crosses any highway at grade, and keep such bell or whistle occasionally sounding until such engine has crossed such highway; and the railroad company in whose employment he may be shall pay all damages which may accrue to any person in consequence of any omission to comply with the provisions of this section; and no railroad company shall knowingly employ any engineer who has been twice convicted of violating the provisions of this section." The defendant has demurred to said third count in the plain-tin's declaration, on the ground that the said statute upon which it is based is penal in its nature, and, being a statute of another state, there can be no recovery under it, beyond the territory in and for which it was enacted. The plaintiff makes no contention that a penal statute has any extraterritorial force, but simply claims that the statute counted on is remedial only, and not penal, in its nature. The only question raised by the demurrer, therefore, is whether said section 3554 is penal in its nature. A penal statute is one by which some punishment is imposed for a violation of the law. A statute may be penal in one part and remedial in another, (Suth. St. Const. § 208, and cases cited;) and in such case, when it is sought to enforce the penalty, it is to be construed as a penal statute, and when it is sought to enforce the civil remedy provided it is to be construed as remedial in its nature. While the statute before us imposes a duty upon the defendant corporation with regard to the giving of signals at grade crossings, it does not impose any penalty for the neglect or violation of such duty. The only punishment, if such it may properly be called, for such neglect or violation of duty, is the damages to which it may subject itself, at the suit of the party who is injured by reason...