Opinion
Argued May 26th
Decided September 5th, 1871
Geo. G. Munger, for appellant.
W.C. Rowley, for respondent.
The statute allows railroads to cross public highways, but requires the railway company "to restore the highway thus intersected to its former state, or to such state as not unnecessarily to have impaired its usefulness." (3 N.Y.S. at Large, Edm. ed., 628, § 28, sub. 5.) Another provision authorizes such companies, in crossing a highway, to go under or above it, as may be expedient. (Id., 626, § 24.) Did the legislature intend by these provisions to allow a railway company to shut up a highway and deprive the people of its entire use? That would seem to be the effect of reversing this judgment, as a road is substantially closed to the public, which cannot be traveled by the cautious without imminent peril to their lives.
The injury in this case occurred to the plaintiff, notwithstanding the exercise of every care by him, as such is the finding, and it is well sustained by the proof.
When he arrived at a proper distance from the crossing, for that purpose, he stopped his horses, rose up in his wagon, looked and listened, and neither saw nor heard aught of the train. Then proceeding again carefully, he sustained the injury by a train rushing suddenly against his horses and wagon, etc., which it was impossible for him to avoid after he saw it.
The deep cutting in which the rail-track ran, the watch-house erected, but not used by the defendant, prevented the train from being seen until the traveler approached within a few feet of the crossing. The watch-house obstructed the view a distance further off. The sound of a fall of water at the crossing, besides the peculiarity of the road, prevented the noise of the train, whistle or bell from being heard; and the cars were running at the rate of about thirty-six miles an hour.
The highway was not closed in fact or in law. The public had a right to use it for travel. The plaintiff, at the time of the injury, was exercising a clear right upon that highway.
The grade of the highway was necessarily considerably changed by reason of this crossing.
All peril of this kind could have been avoided by the railway, by going under or above the surface of the highway at the crossing. If this danger could be avoided in no other way, then it would seem to follow that the "usefulness" of the highway was "unnecessarily impaired" by the railway's omission to do either. It had failed in its statute obligation. It was not the duty of the highway, but of the railroad, to give this protection from the peril caused by the railroad.
Again, in laying down rules of general application, courts find it frequently necessary to make exceptions, to prevent injustice.
When the reason of the rule fails, the law usually discharges the rule. For the protection of the traveling public, the statute requires railroads to ring their bells or sound their whistles a certain distance from the crossing over a highway. The legislature required this, in order to give notice to the traveler of the approaching peril, and to enable him to avoid it. Almost universally, this is a sufficient protection. But, in the case at bar, it gave no notice whatever, and gave no protection. This the defendant well knew, and could not avoid knowing from the surroundings. It also knew that the legislature intended that the traveling public at such places should have notice of the approach of a train in some manner. In this case, as it failed, knowingly failed, to give any notice, it was guilty of a neglect, for which it was justly held liable. Upon that ground it is, in my judgment, liable upon the soundest principle.
The legislature has never enacted that a railroad shall not be liable for any injury at a crossing where it rings its bell or sounds its whistle. No legislative impunity is given to the railroads for damages they may wrongfully cause. But the statute declares that they shall do those specified things, and that they shall be liable for any damages caused by their omission. As a general rule, undoubtedly, they are exempt from liability to the outside public when, in good faith, those provisions are substantially complied with. But there may be cases where the purpose of these requirements is not and cannot be attained by their technical fulfillment. Such is the case at bar — plain and palpable; easily understood, as the act of the company in building the watch-house and in keeping a watchman there for some time, shows the defendant understood it.
This principle has been substantially held by this court in the last decision in Beisiegel v. This Defendant.
The defendant again, by its own act, caused this injury, in its erection of the watch-house, now not used, but preventing the traveler from seeing the train, which he otherwise might.
That it obstructed this traveler's view, is found by the referee. That it thus caused the injury, may be fairly inferred, as nothing could be seen as he approached the track "owing to the formation of the ground and the situation of the watch-house."
There was a map at the trial in evidence and none is produced here. Presumptions are in favor of affirming a judgment. Error is not presumed. If there were doubts on this point, in the absence of the map, the presumption is against error.
A building thus erected by a railroad, which prevented the public from seeing a train until too near for safety, has been held by this court a good ground for recovery. ( Mackay v. N Y Cen. R.R. Co., 35 N.Y., 75.) It is so in this case.
GROVER, J., was for affirmance, on the ground that the rate of speed of the cars was improper, at that point.
FOLGER and ANDREWS, JJ., concur, on the ground that the defendant, by erecting the watch-house, had obstructed the view.
RAPALLO, J., concurs, on the ground that, the road being so constructed that the view was obstructed, defendant was bound to take proper measures, on its own premises, to protect travelers on the highway.