Wakefield v. Connecticut & Passumpsic Rivers Railroad, 37 Vt. 330

Wakefield v. Connecticut & Passumpsic Rivers Railroad

37 Vt. 330 | Vt. | 1864

Barrett, J.

By section 55, ch. 28, of the General Statutes, it is required that, on every locomotive engine, the bell shall be rung, or the steam whistle blown, at least eighty rods from the place where the railroad shall pass any road or street on the same grade, and the ringing or blowing shall be continued until the engine shall have passed such crossing.

Two questions are made in this case under this provision of the statute: 1st, whether the plaintiff, having passed the crossing, and got some thirty-five rods'from it, on his way, before the engine ar*334rived at tbe place prescribed, may insist upon having the bell rung or whistle blown, as upon a duty due to himself. It seems plain that the purpose of the law is to secure as much safety as could be ■done by notice of the approach of an engine, against accidents at and by reason of such crossing. While such accidents are, in tbe main, likely to happen to persons approaching, and about passing such crossing, yet they are not confined to such persons. And we think it would be an unwarrantable restriction of this provision of the statute, to hold that the duty thereby imposed has reference only to persons approaching, or in the act of passing the crossing. In our judgment that duty exists in reference to all persons who, being lawfully at or in the vicinity of the crossing, may be subjected to accident and injury by the passing of engines at that place. '

This case presents a rare and extreme instance of alleged injury resulting from the failure to blow the whistle ; and upon the evidence stated in the bill of exceptions, the connection of such failure with what then happened to the plaintiff and his team seems very slight and conjectural. Still, we do not feel warranted in holding that some connection, in the character of cause and effect, did not exist; or, that the plaintiff may not hold the railroad company responsible for any injury caused to him by an unwarrantable omission to ring the bell or blow the whistle in this instance.

The other question is, whether, by force of that provision of the statute, a railroad company is liable, in all cases, for injury that may happen by reason of an omission to ring the bell or blow the whistle within the prescribed limits.

In section 55, the requirement is affirmative and hnconditional. But in section 56 it is enacted, that if any railroad corporation shall unreasonably neglect or refuse to comply with the requisitions of the preceding section, they shall forfeit, for every such neglect or refusal, a sum not exceeding two thousand dollars. The corporation could not be subjected to that penalty unless such neglect or refusal should be shown to be unreasonable. This clearly implies that in the contemplation of the law there may be cases in which such neglect or refusal would be reasonable; and if reasonable the penalty would not be incurred.

*335In a prosecution for the penalty, the burden would be upon the prosecutor of showing the neglect or refusal to have been unreasonable ; and, upon first impression, it might seem that the rule, as to the liability of the corporation, is the' same civiliter as criminaKter. But, on very full consideration, the court are unable to adopt, that view.

' At common law it would he the duty of the corporation to exercise all reasonable care in the running of engines, and in the general use of the railroad ; and to adopt all proper precautions against accidents likely to happen by reason of the road ; and the faulty neglect of the corporation in these respects would, when affirmatively shown, subject them to liability for injuries caused thereby. We think the provision of the 55th section was designed to operate more stringently in this respect than the common law; and while it was not designed to subject the corporation to civil liability, entirely regardless of the circumstances and occasion of the. omission to ring the hell or blow the whistle, in all cases of injury caused by such omission, still it was designed to require, as the general rule, that the hell should he rung or the whistle blown, in all eases ; and, in case of injury by reason of an omission so to do, to impose the burden on the corporation of showing that such omission, in the exercise of a sound judgment by the engineer, in view of the condition of things as they existed at the time, was reasonable and prudent. When, therefore, in a case like the present, the plaintiff should show that the alleged injury was caused by such omission, it Would not be necessary to his right of recovery that he should take the burden of showing affirmatively that such omission was unreasonable and imprudent ; but it would rest upon the defendant, as matter of defence, to show that it was reasonable and prudent.

This seems to us to secure to individuals and to the public all the protection that is practicable to be afforded in this way, and all that the statute was designed to secure. It seems to us to be not reasonably supposable that the statute was designed to make the doing of those acts a matter of indispensable legal duty in all cases, and under all circumstances ; for it is easy to conceive of cases, and they actually occur, in which the ringing of the bell or the blowing of the whistle would consummate, with disaster, the peril in which the *336party was already placed, — disaster which might not have occurred, if the ringing or blowing had been omitted. In such a case it would certainly be, not only unreasonable, but sometimes, under existing circumstances, little short of murderous to ring or blow. It would be a case plainly contemplated by the statute as likely enough to occur; and this is manifested-by the sec. 56, in providing as to the penalty.

In our opinion, therefore, the liability of the corporation should be left to stand upon this, viz : whether, in the judgment of the jury, upon all the evidence, the omission in the given case, in view of the actual condition of things at the time, was reasonable and prudent. This leaves the matter to be settled, not by the judgment of the'person running the engine, but by the judgment of the jury, exercised upon the circumstances in which the engineer was placed, at the time he withheld the ringing of the bell or the blowing of the whistle.

This holds the corporation and the engineer, not merely to the exercise of an honest good faith and intention, but to the exercise of reasonable judgment and prudence. It holds the corporation responsible for the competency, in this respect, of the engineers, and at the same time does not preclude the exercise óf such judgment and prudence, with a view to relieving impending peril, and avoiding probable disaster to the imperilled party.

Upon the evidence set forth in the bill of exceptions, we think that, as to the subject matter of the second request, the defendants were entitled to a charge substantially conformable to the views of the court as above indicated.

The judgment is reversed, and the case remanded.