Bailey v. Hartford & Connecticut Valley Railroad

Andrews, J. A highway runs parallel with and near to the defendant’s railroad track for about three fourths of a mile at a part of its road two or three miles south of the city of Middletown. A passenger train moving northerly at the rate of thirty or thirty-five miles an hour along that part of the railroad, sounded its whistle as a signal of its approach to a grade-crossing. The whistle was sounded in a reasonable manner, and at the regular whistling post about forty-five rods south of the grade-crossing. The whistling post had been at the same place for twenty years. Southerly from the post there was a sharp curve in the road and on its westerly side a high bluff from sixty to seventy-five feet high. The post was set up and kept at that place for the reason, assigned by the defendant, that because of the curve and the bluff a signal given there was more effective and reliable and more likely to be heard at the grade-crossing than if given eighty rods away. The train did not whistle at the point eighty rods from the crossing. The plaintiff was traveling on the parallel highway going north, and was at a point about thirty-five rods south of the grade-crossing when the whistle sounded. He had a horse — 456 — of ordinary gentleness and was driving with ordinary care. His horse was frightened by the whistle, ran, and threw him out on the ground, and he received the injuries thereby which are complained of in this action. It was in the evening and it was dark and raining. The engineer of the train was watching the track and looking out for the grade-crossing, and he did not see the plaintiff. His attention was directed to the track alone and he was not looking to see if any one was traveling on the highway. The Superior Court found that “the whole distance which the highway runs parallel to the railroad is made dangerous to travelers by the proximity of the railroad to it, and that part of it where the accident happened is especially so, particularly in the evening when it is dark and stormy; and at such a time requires of the managers of railroad trains more than ordinary caution and care that persons traveling with teams on the highway do not have their horses unnecessarily frightened and themselves injured in consequence.” Having laid down this as the rule of duty incumbent upon the defendant at that time and place, that court found the defendant “ guilty of negligence in giving no signal of the approach of its train eighty rods from the grade-crossing and in fact giving notice by whistling at the post; and that reasonable care by the defendant under the circumstances required it to have given a signal by whistle or otherwise eighty rods from the crossing, and to have occasionally rung its bell and not blown its whistle along the line of the parallel highway until the crossing was reached.” And thereupon the court rendered judgment in favor of the plaintiff for substantial damages. The defendant has appealed to this court. The law requires of the managers of railroad trains the utmost possible care for the safety of their own passengers. A section of the statutes directs with particularity what the engineer of a train must do when approaching a grade-crossing. These are duties of the very highest nature. The duty which such managers are under to persons traveling with teams on a highway is a limited one at the most, — 457 — and one that should never be permitted to interfere in the slightest degree with the higher duty they owe to their own passengers and to persons upon grade-crossings. Under no circumstances are they required to exercise more than ordinary caution and care towards persons traveling on a highway. And in so deciding the Superior Court required of the defendant that which the law does not require. A highway cannot be laid out within three hundred feet of a railroad except upon the approval of a judge of the Superior Court. A railroad cannot be located except upon the approval of the railroad commissioners. When a railroad is located near to a highway and the location is approved by the railroad commissioners, or when a highway is laid out within the prohibited distance of a railroad and the lay-out has been approved by a, judge, such approval in either case implies an adjudication upon the question of danger to. travelers on the highway by reason of trains on the railroads. After having such an approval of its location a railroad company has authority to operate its road in the usual and ordinary way, including the right to make all the noises incident to the working of its engines and cars, and also the right to give the usual and proper signals of danger as by the sounding of whistles or the ringing of bells. And while exercising such rights in a reasonable manner the railroad company is not liable for injuries occasioned by horses, when being driven on a highway, taking fright at such noises. The whistle which frightened the plaintiff’s horse was a signal that the train was approaching a grade-crossing. There was no claim but that the whistle was sounded properly for that purpose. The statute (Gen. Statutes,. § 3554), directs that the engineer of every train shall within eighty rods of any grade-crossing sound the whistle or ring the bell. This is required that all persons who are about to cross the track at the grade-crossing may have notice that the train is coming. Obviously, such notice should be given at such place and by such means as will be the most likely to accomplish the object which the statute has in view. That — 458 — the whistle is a more effective means of warning than the bell is established by common knowledge as well as by an almost universal usage. So uniform, indeed, is this usage, that an omission to sound the whistle, except at a place where the railroad commissioners had authorized the whistle to be omitted, even if the bell was rung, would undoubtedly be regarded as negligence.. If by reason of curves in the railroad, or by reason of high bluffs on either side, the signal when given at a distance of eighty rods from the crossing is not likely to be heard by persons near the crossing, but when given at a distance of forty-five rods is certain to be heard by such persons, then by every rule of good sense the signal, if to be given but once, should be given at the latter distance and not at the former. To argue the other way is a plain “ sticking in the bark.” The finding upon this part of the case is as follows:—“ Immediately below the whistling post is a sharp curve in the track and on the westerly side of it a steep bluff from sixty to seventy-five feet high, which somewhat, and in certain conditions of the atmosphere considerably, tends to obstruct and interrupt the passage of the sound of trains coming from the south.” Taken in connection with the successful use for twenty years by the defendant of the forty-five rods distance, this makes a very strong affirmative case that the signal when given there is much more likely to be heard at the grade-crossing than when given at the eighty rods distance. The finding continues:—“But it did not appear on the night in question that the signals required by law could not have been heard at the grade-crossing if they had been given at eighty rods below.” It is sufficient just here to. say that this may be no more -than a statement that there was an absence of evidence on the point. We will recur to it further on. The defendant’s engineer gave a signal required by law. He gave it in a proper manner, by the most efficient means, and so far as appears at the place where it would have the most effect. To call such an act, when done in such a manner, negligent, seems a misapplication of terms. It was — 459 — claimed upon the argument by the defendant’s counsel, and apparently with confidence, that had the engineer omitted to give this very signal he would have exposed himself to a criminal prosecution and to a fine of not less than ten dollars. Gen. Statutes, §§ 3554, 3557, and 3607. ■ This is a view of the case which we have not found it necessary to consider. Negligence has been defined by this court to be a failure to perform some act required by law, or doing the act in an improper manner. It is certain that the act of the engineer does not come within this definition. The recent case of Lamb v. Old Colony R. R. Co., 140 Mass., 79, was as follows':—The plaintiff was driving his horse along a highway parallel to and adjoining the defendant's railroad, his horse was frightened by the smoke from the engine of a passing train, and the plaintiff was injured in consequence. The smoke which frightened the horse was occasioned by “firing up” the engine—that is mending the fire, or adding fuel to it, the ordinary effect of which is to cause the emission for a short time of very black dense smoke from the smoke stack. The contention of the plaintiff was that it was practicable to run the train for the whole distance where the railroad adjoined the highway without firing up, and that the act of firing up on the stretch of railroad adjoining the highway was unnecessary for the ordinary running of the train and exposed travelers to an unnecessary danger. There was no evidence in the case that the persons managing the train knew that the plaintiff was on the highway, but there was evidence that they would have seen him if they had been on the lookout for travelers on that part of the highway; and the plaintiff on this part of the case contended that the defendant was negligent in not observing him and avoiding firing up when it would endanger him. Upon these facts and claims the court said:—“ The lawfulness of the act cannot depend upon whether a traveler happens to be at such a distance from the engine that he will not be endangered by the smoke caused by it, or in such a position that he cannot be seen by the fireman or engineer. — 460 — If it is their duty to see one traveler outside the location of the railroad it is their duty to see how many travelers there are and to observe the position, direction and speed of each, the speed of the engine, the state of the atmosphere, the direction and force of the wind, the character of the coal used, and other circumstances which may determine whether all travelers are and will continue to be, until the smoke is dissipated, in such a position that their horses will not be affrighted by it. Being under no obligation to watch for travelers the defendant could not have been guilty of negligence in not seeing and avoiding the plaintiff.” We come back now to the language of the finding before quoted that-^“it did not appear on the night in question that the signals required by law could not have been heard at the grade-crossing if they hád been given eighty rods below.” The judgment rendered makes it probable that the court regarded this as equivalent to a positive finding that on the night in question the signals required by law could have been he'ard at the grade-crossing if they had been given eighty rods below; and that consequently the engineer was negligent on that night in not sounding the whistle at that distance from the crossing. If this is correct, then upon some other occasion when the conditions were such that the signals required by law could not be heard at the grade-crossing if given eighty rods below, the engineer would be negligent if he should give them at that distance and omit to give them at the whistling post. And thus the duty of the engineer to give or not give the signals required by law at the whistling post would be made to depend upon the direction and force of the wind, the degree of moisture in the air, the electrical condition of the atmosphere, or some one or all of the circumstances which affect the transmission of sound. These are conditions many and perhaps all of which are liable to change almost every moment and which it would be wholly impracticable for the engineer of a railroad train to ascertain beforehand." Indeed it is very questionable whether there is any human knowledge by which these conditions and changes can be predicted — 461 — with any such certainty as to make them available in the management of railroad trains. It would be clearly unjust to hold an engineer to be guilty of negligence for being ignorant of those things which the highest skill has hitherto failed to discover. There is error in the judgment of the court below. In this opinion the other judges concurred.