This is an action for negligently causing the death of the plaintiff's intestate. The defendant suffered *Page 266 a default and was heard in damages. The Superior Court found the facts, finding that the defendant was guilty of negligence, and that the deceased was not guilty of contributory negligence, and rendered judgment for the plaintiff for substantial damages. The defendant appealed. The claim is that the court erred in matters of law in respect to both findings.
1. As to the negligence of the defendant. The accident occurred on the defendant's railroad, west of the city of Danbury, where a highway running north and south crosses the railroad at nearly right angles, the train going east. It appears that there is a whistling-post between seventy and eighty rods west of the crossing; that the whistle was not blown, as was usually done, at the post, or at any point between that and the crossing; and that it was blown at a point some four hundred feet further from the crossing. On that ground alone the court found negligence.
The statute, (Gen. Statutes, § 3554,) provides that "every person controlling the motions of any engine upon any railroad, shall commence sounding the bell or steam whistle attached to such engine when such engine shall be approaching, and within eighty rods of, the place where said railroad crosses any highway at grade, and keep such bell or whistle occasionally sounding until such engine has crossed such highway." The practical interpretation of this statute is to sound the whistle when within eighty rods of the crossing, and to ring the bell until after passing the crossing. The language of the statute is in the alternative, and it will be literally complied with if either is done to the exclusion of the other; but in a matter of this importance, where the highest degree of diligence may justly be required of railroad companies to protect life at crossings, a strictly literal compliance with the statute is not always enough; especially when it is apparent that such compliance may be ineffectual. There are times when statutes should be complied with according to their spirit and intent. Particularly is that so when the duty which the statute is designed to enforce does not originate in and is not measured by the statute. Here is a duty *Page 267 which exists at common law. It has its origin in the humane instincts of the race. Obviously the statute was not designed to define and limit the duty of railroad companies. They cannot do less than the statute requires; there are times and occasions when they may properly be required to do more. If both the whistle and bell would be more effective, the statute ought not to be so construed as to prevent their use from being required. Inasmuch as both are at hand ready for instant use, there can be no hardship in requiring both. And so this court was fully justified in saying on this subject "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." Bailey v. Hartford Conn. Valley R.R. Co., 56 Conn., 444. It cannot be said that this is technically negligence, but without damage; for it cannot be known that the omission to sound the whistle at the post was not the cause of the accident; obviously it might have been. And the court was justified in finding negligence. The wind was blowing from the east, so that its tendency was to carry the sound from the deceased. It does not appear whether he heard it or not. Perhaps there is some presumption that he did not; otherwise effectual measures would have been taken to prevent the accident. Perhaps also, if he did hear it, the sound was so indistinct as to justify the suggestion of the court that he might reasonably have believed that it was for another crossing nearly a mile west. Who then can say that if the whistle had been sounded at a point some four or five hundred feet nearer the crossing the accident would not have been prevented?
From what has been said it will be readily inferred that we are not prepared to assent to the reasoning of the defendant's counsel, that the sounding of the whistle some seventeen hundred feet from the crossing, thirty seconds away, was better for the deceased than it would have been at the post, thirteen hundred feet and twenty-three seconds away. A danger signal, giving twenty-three seconds of time, if heard *Page 268 and heeded, is better than one giving thirty seconds, if not heard, or, if heard, mistaken for something else.
2. Contributory negligence. The facts bearing upon this part of the case are found as follows: — "The engineer, who sat on the right hand side of the locomotive, did not see the deceased. The fireman first saw the deceased when the latter was within about fifty feet of the crossing and was endeavoring to stop his horse. The fireman immediately called out to the engineer, but it was then too late to avert the accident. The crossing in question is at right angles to the track. Immediately adjacent to the track on the north is a bridge over a stream about ten feet wide. For a distance of about seventy feet north of the bridge the highway is substantially level, and commands a view of the railroad track to the west for nearly a mile, for which distance the track is substantially straight. * * * Going north from a point about eighty feet north of the track, the highway ascends, and the view of the track from the road is obstructed by a stone wall and bank and by the trees up to a point three or four hundred feet north of the track, where again a clear view of the track at the west is obtained. Upon the day in question the plaintiff's intestate was driving down the hill from the north. He was a careful driver, was driving a gentle horse, and was sitting upon one of the string-pieces of a wood-rack upon his wagon. * * * The wood-rack consisted of two poles or string-pieces running lengthwise of the wagon and resting upon the bolsters, and connected with cross pieces, and having upright stakes for holding wood, and is similar to that ordinarily used by farmers in drawing wood. Sitting in so low a position, one could not, in passing along that part of the road where the view of the track is obstructed by the wall and bank, so easily obtain a view of the track as when seated upon the raised seat of an ordinary wagon, nor could one seated as the deceased was so easily control his horse when frightened as when sitting upon an ordinary wagon seat. When the deceased was at the point before described on the hill, three or four hundred feet north of the track, the train was not *Page 269 in sight. Whether or not, after passing that point, and while the track was not in sight, he heard the whistle for the crossing, did not appear. The whistle as blown for this crossing could have been heard on that day by a person on the highway and as far from the engine as the deceased was at the time the signal was blown. The wind at this time was blowing from the east. If the deceased heard the signal blown for this crossing, it would have been reasonable for him to have believed that it was not for the crossing over which he was to pass, but for the next crossing, nearly a mile west of this crossing. When the deceased reached the level space at the foot of the hill and saw the near approaching train, his horse became frightened and unmanageable, and ran toward the track. The deceased made every endeavor to stop his horse, and nearly succeeded in doing so at a point very near the track, when the horse, frightened by the engine, sprang in front of the engine, and the deceased was struck and killed."
Evidently the question of contributory negligence is mainly a question of fact. It is difficult to see in the record any legal question in this branch of the case.
We may say generally, that the law requires every one to use ordinary care to avoid danger at a railroad crossing. What will be ordinary care depends upon the degree of danger. For a man in the perilous condition in which the deceased was placed, nothing less than every possible effort to avert an accident will amount to ordinary care; making due allowance, of course, for excitement, misjudging, etc. So far as we can judge from the facts stated, there is no reason to suppose that the deceased did not come up even to this standard; at least, we see no fact in the case which, when carefully considered, is inconsistent with this degree of care.
Negligence, if any existed, was in permitting himself to be placed in that position. It may have existed, but its existence is not so clear as to justify us in saying, as matter of law, that it existed. Let us briefly notice the claims of the defendant's counsel. The first suggestion is that it is an *Page 270 unusual occurrence, and "that the reason of its happening lay in the fact that the driver was so seated as to have no control of his horse." This assumes that using such a wagon, seated in the manner described, was negligence per se. Manifestly this cannot be so. The significance of this fact must depend largely upon the attending circumstances related to and bearing upon this question. He was in the business of hauling wood; he used such a vehicle as was ordinarily used for that purpose; he was as conveniently seated as others in the same business were: he had a gentle horse; the train was an extra one, closely following a regular passenger train; we may suppose that he had the latter in mind but not the former; and we cannot assume that he had any knowledge of the approaching train until about the time he was seen by the fireman trying to control his horse. Upon these facts it is quite clear that the question, — was it reasonable for him to use such a vehicle in the manner he did, was a question of fact. Perhaps most men would have come to the same conclusion that the trial judge did. But however this may be, we cannot say that the judge committed a legal error in the conclusion to which he came.
Again, counsel say: — "As soon as Mr. Bates knew the train was coming, it was his plain duty to stay where he was, or at least to take his horse by the head if he approached nearer. He did neither of these things. After he passed the stone wall, which hid the view from his low seat, and saw the engine coming, he drove on some thirty feet towards the track, and got within fifty feet of it, yet continued to sit in the same awkward position, in which he could have no pull on the reins, and could exercise no proper control of his horse." How do we know when Mr. Bates first saw the train coming? How do we know that it was in his power to change his position, so as to get better control of his horse? Unfortunately the record does not answer these questions.
In the next place, it is said that "the engineer's whistle gave the deceased half a minute's warning." That is in *Page 271 consistent with the record, for that leaves it uncertain whether he heard it.
Lastly, it is said that he was guilty of negligence if he did not, as he drew near to the crossing, stop and listen for a train. Of the facts relating to this suggestion we know but little. The trial judge had a much better opportunity to judge of that matter than we have. As he has not found negligence, we cannot.
There is no error in the judgment appealed from.
In this opinion ANDREWS, C. J., and SEYMOUR, J., conconcurred.