Vandewater v. New York & New England Railroad — 43 N.Y. St. Rep. 420

Majority

p. 420

Josephine Vandewater, Adm’rx, Resp’t, v. The New York & New England Railroad Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Railroads—Statutory signals.

Notwithstanding the repeal of the former statute in relation to railroad signals, a railroad company is not free from the obligation to sound the bell or whistle at a highway crossing. The penalty imposed by § 421 of the Penal Code upon an engineer for a failure to ring the bell or sound the whistle when approaching a travelled street or road implies a direction or imposes a duty to do so, although it .imposes no affirmative duty upon, him.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

Action to recover for the death of plaintiff’s husband, who was-killed while attempting to cross defendant’s tracks at a farm crossing.

W. C. Anthony, for app’lt; Wood & Morschauser, for resp’t.

On the 16th day of August, 1890, William Pi Yandewater, the husband of the plaintiff, was killed by a locomotive engine upon the defendant’s railroad at a farm crossing west, of the station at Fishkill Yillage, Dutchess county. The crossing is nearly at right angles with the railroad, and the deceased was driving North while the engine which struck him came from, the east, drawing a pay car only.

There was no claim that any alarm was sounded for the farm.! crossing, but there was a claim that the usual alarm was given, as the train approached the station at Fishkill Yillage. There; was evidence tending to show that no such alarm was given.

The trial judge charged the jury that the deceased had the-right to assume that the company did its duty with respect to the-crossing, and if it did not sound the bell or blow the whistle, audit was accustomed to do so at the village station, and it did not do that and the two things combined caused the accident, if the-deceased was killed by reason of the omission to do those things,, then the jury might find a verdict of negligence against the companv upon it

There was an exception to that portion of the charge, but we-

p. 421

cannot sustain it. We are not prepared to. hold that a- railroad company is now free from the obligation to sound the bell or whistle at a highway crossing. We have found no authority for such a position, and we do not think the statute should receive such a construction. It is as follows: “ A person acting as engineer driving a locomotive on any railway in this state, who fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a travelled road or street on the same level (except in cities) or to continue the ringing such bell, or sounding such whistle at intervals, until such locomotive and the train to which the locomotive is -attached shall have completely crossed such road or street, is guilty of a misdemeanor.” Penal Code, § 421.

This statute imposes no affirmative duty upon an engineer driving a locomotive, bqt pronounces him guilty of a misdemeanor if he fails to ring the bell or sound the whistle; and quite singularly also his guilt does not follow as the result of an affirmative act, but upon his failure to do a certain thing.

But the statute must receive a reasonable construction, and although it contains no language requiring an engineer to ring the bell or sound the whistle, yet as it makes a failure to do .so a misdemeanor, it must be construed to contain an implied requirement for the performance of the duty. The legislature intended to accomplish something by the enactment of the law, and the design plainly was to secure the ringing of the bell or the sounding of the whistle at the designated place, and that was the purpose of the former statute, which is now repealed.

We might go further and assume that the reason for the repeal of the former statute upon the subject was, the section of the Penal Code in question took its place, secured its purposes and rendered it unnecessary.

It has been many times decided in this country and in England that a penalty in a statute implies a prohibition, though there be no prohibitory words in the act. Griffith v. Wells, 3 Denio, 226 ; Best v. Bauder, 29 How., 489 .

So by analogy to that principle it may be said here that the penalty in this law implies a direction or imposes a duty, though there be no imposition of a duty in the statute.

In this view of the statute the portion of the charge under examination was free from error.

Respecting the conduct of the engineer after the horse of the deceased was discovered, or after he might have seen him by the exercise of vigilance, the testimony presented a proper question for the jury.

After a full examination of the case we have failed to find any errors, and the judgment and order denying a motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not’sitting.