Brown v. Long Island Railroad

Gaynor, J. (concurring):

It is true that a railroad company may discharge its duty of giving reasonable warning of the approach of its trains to a highway crossing in various ways, such as by a flagman, by gates, by a bell at the crossing, or by locomotive whistle or bell; it being for the jury to saj whether the warning given was sufficient. But when it claims to have resorted to only one of the ways, it is entirely proper to charge the jury that unless it did use that way it was guilty of negligence. This is obvious, and yet is overlooked often in charges. And in the same way, if it claims to have resorted to more than one way, the charge has to be that if it used any one or more of them it is for the jury to say whether they were reasonably sufficient. Now in this case the defendant produced evidence that it used locomotive bell and whistle. The learned trial Judge at the outset charged as follows: “ The negligence that you must find the defendant guilty of to entitle the boy to recover will be that the railroad company, through its engineer, did not whistle as he approached that crossing the proper distance from the crossing * * * or that the bell was not rung ”. This took from the jury the question whether if the defendant did either that did not suffice. It did not claim to have given any other warning, and was therefore at all events remiss in its duty if it gave neither; but that it had to give both was for the jury, not the court, to say. *652Later the learned trial Judge charged as is set out in Mr. Justice Rich’s opinion, which conveyed to the jury as matter of law that the whistle, at all events, could not be omitted. There are other things in the charge which make it impossible to pass these errors over.

Woodward, Jenks and Miller, JJ., concurred in both opinions.

Judgment and order reversed and new trial granted, costs to abide the event.