123 N.Y. 496 | NY | 1890
We see no reason to doubt the correctness of the action of the trial court in refusing a nonsuit, and submitting to the jury the questions of negligence as questions of fact.
The only important exception grows out of the repeal of section 7 of chap. 282, Laws of 1854. That section accomplished two things. It imposed upon railroad companies the duty of ringing the bell of the engine or blowing the whistle at eighty rods from the crossing at grade of a traveled public road, and made the companies responsible for damages resulting from that omission; and then it made the engineer, who should omit the required signals, guilty of a misdemeanor. This last provision was carried into the Penal Code, and left its presence in the act of 1854, no longer necessary. The General Repealing Act of 1886 (Chap. 593, p. 838), instead of merely repealing so much of the act of 1854 as had been reproduced in the Penal Code, repealed the whole of section 7 “ to and
Nevertheless, the court, in its charge to the jury, did assume, as matter of ¿aw, the existence of such a duty, and submitted the question of its omission or performance. To this charge, the appellant’s counsel claims that he excepted, and assigns that exception as a ground for reversal.
I. think it quite clear that he did not raise that question. He contended persistently that the road, which crossed the tracks at the place of the accident, was not a public highway,, but a private crossing, to which the mandate of the statute-did not apply; and when he excepted to the charge-'which held the contrary, his language shows that he intended to raise, and was understood to raise, not the question of the existence of the statute, but that of its application to the case in hand. He closed his exception to the charge with the statement, “ I except to that as applicable to this case.” In answer to the exception, the court said: “ I spoke of it as a. public highway. Is there, a point about it ? ” To which the defendant’s counsel answered, “ I claim that there is no proof that it is a public highway.” The court retorted, “ It has been used for twenty-five years for passengers there.” To which the defendant’s counsel replied, “ It has been used by people about there. We say that the law applies only to highways that are regularly laid out as highways of the state.” At this point the precise nature of the defendant’s contention became apparent. Its counsel conceded the existence of the law to-which the court had referred, but denied its application to the crossing in question. The court so understood it, and, after the evidence of user which had been given, seemed somewhat surprised, but finally submitted the question whether the crossing was public or private, saying, “ If it is a highway, gentlemen, the law applies to it. A highway may be established by user, and it may have but one end. I did not suppose there was any doubt about it. But you can go to the
To hold otherwise would be to encourage what would operate as a misleading of the court. If the counsel had known at the time that the statute had been repealed, and had raised that objection, the court would still have been bound to submit to the jury the question whether the train approached the crossing with due care, and the jury would have been left to determine that question without the aid or guidance of the statute. The mistake which occurred gave to the defendant a more favorable position before the jury than it was in truth entitled to, for even though the bell rang and whistle blew at eighty rods, the jury, in the absence of the ■statute, would have been at liberty to have said that in view of the locality, and the speed of the train the warning should have been given at a greater distance. The question argued was thus not raised, and the mistake which occurred seems to us to have been rather beneficial than injurious to the appellant.
The question whether the crossing was on a public traveled road became upon the facts proved a question for the jury. The evidence tended to show such a 'user by the public for more than twenty years as would have justified a record of the road as a highway by the proper authorities. Their failure to
We think no error was committed which will warrant a reversal, and that the judgment should be affirmed with costs
All concur.
Judgment affirmed.