Railway Co. v. State

• Decision Date: 19 May 1894
• Citation: 26 S.W. 824,59 Ark. 165
• Parties: RAILWAY COMPANY v. STATE
• Court: Arkansas Supreme Court

26 S.W. 824

59 Ark. 165

RAILWAY COMPANY v. STATE

Supreme Court of Arkansas

May 19, 1894

Appeal from Jackson Circuit Court, JAMES W. BUTLER. Judge.

STATEMENT BY THE COURT.

This was an action to recover the statutory penalty for failure to ring bell or sound whistle at road crossing. The complaint is as follows: "The St. L. I. M. & S. Ry. Co. on the 24th day of February, 1889, and about 11 o'clock a. m. of said day, unlawfully did run a certain engine, drawing a certain passenger train en route south, at the crossing of the Jacksonport and Jonesboro road, a public highway in said county, without ringing the bell, or sounding the whistle of said engine, within eighty rods of said public crossing," etc. The defendant answered that it was not guilty, and the cause was submitted to the court, sitting as a jury, upon the following testimony:

J. W Whitford testified "that during the spring of 1889 he saw a freight train of the defendant railway company, drawn by an engine, pass the crossing of the Jacksonport and Jonesboro road in Jackson county, Arkansas, without either ringing the bell or blowing the whistle on the engine; that said Jacksonport and Jonesboro road is a public highway; that he cannot state the date. It was some time before the spring term of the Jackson circuit court. It might have been in February, but I think it was in March. I think it was four or six weeks before the meeting of the Jackson circuit court, of the term in which the complaint was filed."

Clay Roberts testified: "In the spring of 1889, I had been reading the law requiring railroad trains to whistle at public crossings. I was at my house near the crossing of the St. Louis, Iron Mountain & Southern Railway Company with the Jacksonport and Jonesboro road, which is a public highway. I saw an engine and freight train on defendant's road pass over the crossing going north, without either ringing the bell or blowing the whistle on the engine. I cannot say what month in 1889 it was. I think it was in March. I don't know whether I had commenced plowing before that time or not. I think it was three or four weeks before the meeting of the Jackson circuit court. I saw Mr. Whitford go down to the crossing to see if the train whistled."

The foregoing was all the testimony in the case.

The court then declared the law as follows: "If the offense is proven, it makes no difference as to the time, so long as the evidence shows it was committed sometime within a year prior to the commencement of this action." The finding of the court was that the defendant "did run an engine and freight train going north over the crossing of the Jacksonport and Jonesboro road without either ringing the bell or blowing the whistle, the date not fixed by the proof further than that it occurred prior to the meeting of the court in April, 1889, and between February 24 and April of that year."

The judgment appealed from was for $ 200.

Judgment reversed and cause remanded.

Dodge & Johnson for appellant.

1. This is a civil proceeding--not a criminal case. 55 Ark. 206; 56 id. 167. The enforcement of the penalty under sec. 5478 Mansf. Dig., must be guided and controlled by the rules governing civil actions. The charge was that the company incurred the penalty, because, on February 11, 1889, the engineer of defendant's passenger train going south failed to comply with the statute. Neither of these charges were proved. There was in this case not only a variance, but was an absolute failure of proof, and it falls within Mansf. Dig., sec. 5077; Newman, Pr. & Pl. p. 723; 3 E. D. Smith (N Y.), 408; 10 How. 321; 1 Abb. 237; 28 Barb. 441; 16 N.Y. 254; 2 Comst. 506; 2 N. Y. Reports, 506-7. The law as declared by the court was erroneous.

2. The verdict is not sustained by the evidence.

OPINION

WOOD, J. (after stating the facts.)

Section 5478, Mansf. Dig. provides: "A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county; and the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect." "Every neglect" creates a cause of action under the above statute. The failure to comply with the requirements of sec. 5478, supra, is not a crime, as was held by this court in Railway Company v. State, 55 Ark. 200. See also Railway Company v. State, 56 Ark. 166. Nor are the same rules as to pleading and evidence in misdemeanors applicable by analogy to cases of this kind. The learned circuit judge, it appears, proceeded as to the proof and the statute of limitations, as though the appellant had been charged with a misdemeanor.

Sec 4482, Mansf. Dig., provides that "all actions upon penal statutes, where the penalty or any part thereof goes to the State or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued." So that two years is the period of limitation. If the complaint in this case had alleged...