On Petition for a Rehearing.
Mitchell, J.The argument of the learned counsel in support of the petition for a rehearing is directed to the maintenance. of two propositions: First. That the court erred in assuming, in the principal opinion, that the special findings predicated no negligence upon the failure of the railroad company to comply with its statutory duty, as charged in the second paragraph of the complaint. Second. That we are in error in holding, in the absence of any finding to the contrary, that the presumption must be indulged that sounding the whistle by the engineer was in pursuance of some occasion rendering such conduct proper and necessary.
Respecting the first proposition, a careful re-examination of the special findings confirms us in the opinion that the-liability of the defendant was not predicated upon the failure of the defendant to execute the signals required by law.
While the findings show that the signals were not given in exact conformity with the very letter of the statute, there appears to have been a substantial compliance with the law. Resides, there is no possible connection, near or remote, between the injury and the failure to give the signals in literal compliance with the statute, instead of the manner in Avhich AA'arning of the approaching train Avas given.
The finding is, that one “ long blast,” lasting five or six seconds, was given. The signal prescribed is, three distinct sounds of the whistle. The purpose in requiring signals is to give warning of the approach of trains. One “long *537blast ” occupied more time than would have been required to give double the number of distinct sounds prescribed by the statute. It probably made double the amount of noise. It could hardly be said, if six, instead of three, distinct blasts of the whistle had been given, that there was a failure to give the necessary warning by signalling the approach of the train.
The statutory warning must be given. If more than the statute requires is given, the railroad company may be liable to some one who is injured by the excess, but not for a failure to give the signals.
Upon the former hearing this second paragraph of the complaint, which it is now claimed the special finding supports, was subjected to criticism by opposing counsel as not being sufficient on demurrer. It was then said by counsel, who now insist that we fell into error in assuming that the special findings predicated no negligence on the failure to give the signals as charged in the second paragraph, that “ the overruling of the demurrer to this paragraph, if erroneous,, has become, by the events of the trial, immaterial and harmless, Because the finding of the court is on the first paragraph.” Counsel then proceeded in their argument to demonstrate the proposition above stated, and closed the discussion of this subject with the following pertinent and emphatic assertion: “The language of the learned judge who drew the finding is so explicit that there is no room for even a captious reader to doubt that the finding is bottomed wholly on the negligence of the appellant, as set forth in the first paragraph, as contradistinguished from the liability for a failure to comply with the statute.”
Our own examination of the special findings, coupled with the vigorous argument of counsel, induced us to accept the view thus forcibly urged. Assuming that counsel have, for sufficient reasons to themselves, arrived at a different conclusion, our opinion in respect of the matter, nevertheless, is— *538barring the imputation of captiousness — well expressed by the language quoted from their original brief.
As respects the second proposition, it is now contended, the special findings being silent upon the subject of the necessity ■or propriety of sounding the whistle when the engine came upon the bridge, which was in part the occasion of the fright of plaintiff’s team, that the conclusion must be that it was unnecessarily and improperly sounded.
The action having been brought to recover damages for alleged negligence, it is of course not disputed that the burden of proving negligence was on the plaintiff. Nor is it claimed, as indeed upon reason and authority it could not be, that the mere sounding of the locomotive whistle is, ordinarily, negligence per se. The argument is, that because it is found that the whistle was sounded at a place of extraordinary danger, where teams were likely to be passing, and because the act of sounding it was likely to give fright to passing teams, therefore it must be presumed, from the mere finding that it was sounded, that it was wrongfully and negligently done.
At the former hearing we sought to maintain the proposition that because sounding the whistle was, under some circumstances, absolutely enjoined as a statutory requirement, and because the courts took judicial knowledge of the fact that, under other circumstances, it was an indispensable necessity to the running of trains, therefore the mere fact that the whistle was sounded was not of itself negligence. Unless it can be maintained that it was, the argument is at an end. If the act which the court finds contributed to the injury was not per se negligent, that is, was negligent or not, depending on whether there was a necessity for doing it, manifestly before an inference of negligence can arise from the mere doing of the act, it was incumbent on the party having the burden of the issue to show that the act was done under such circumstances as made it at that time negligent.
Where a special finding is silent as to a fact, the existence *539of which is necessary to make out the plaintiff’s case, the presumption will he the fact did not exist. This rule has been so often stated that we need not cite authorities in its support. To sustain the plaintiff’s case, it was incumbent on him to prove that the defendant was guilty of negligence. The proof, as we must assume, went to such an extent as to enable the court to find nothing more than that the defendant did that for which, under some circumstances, the law imposes a penalty against its servants if the act which was done is omitted, besides making the company liable for all damages which result from its omission. Under other circumstances the court knows judicially that an indispensable necessity may require the doing of the act; whether doing the act was negligent or not depended upon the presence or absence of the conditions which, under pains and penalties, required it to be done, or the existence of any of the numerous circumstances which may have rendered it of the highest public concern that it should have been done. Upon these subjects the evidence was such, we must assume, that the court was unable to find one way or the other. Now it is insisted that because the place was one of extraordinary danger and the act done was one which was likely to produce injury, the. court must assume from the mere doing of the act, that it was improperly and unnecessarily done. •
This, beyond question, would be the rule in case sounding the whistle on the locomotive while in rapid motion was something which the engineer might always do or omit at his pleasure, without regard to time or place. The case would then be within the rule, that “ where a person is doing a voluntary act, which he is under no obligation to do, he is held answerable for any injury which may happen to another, either by carelessness or accident.” Vincent v. Stinehour, 7 Vt. 62. Underwood v. Hewson, Strange, 596. This principle distinguishes all the cases which the learned counsel have cited in support of their petition.
There is neither legal requirement nor other necessity that *540we know of that live coals of fire should, under any circumstances, be dropped from an elevated railroad in such manner as that they may fall upon those passing beneath, along a public street, as was the ease in Lowery v. Manhattan R. W. Co., 99 N. Y. 158 (52 Am. R. 1-2). So with the blowing off of steam from an engine. The law fixes no time nor place, whenand where, this is to be done, and courts can have no such kn o wledge of the necessity for so doing, as that it can be said, as a matter of judicial knowledge, that the act must be done at the very moment an emergency arises, as in the case of sounding a whistle. The doing of such an act, without explanation, at a time when and place where there is a high degree of probability that it will produce hurt to others, may well be held to be negligence. The reason is, the person in charge of the engine, presumptively, might have selected another time and place for the act. Where, however, an act is done, in the progress of a business, which customarily is only performed in pursuance of a legal duty or public necessity, it will not be presumed, from the mere doing of the act, that it was unnecessarily or wrongfully done.
The distinction is precisely that which governs in a case where one who is under no obligation to do so, voluntarily handles a fire-arm in such manner that it is discharged to the hurt of another, and the case of a soldier who, while in exercise, hurts another by the discharge of his piece. In the one case, civil liability attaches, regardless of whether the injury occurred through carelessness or misfortune; in the other, only when the act was done wrongfully or carelessly.
It is as much a requirement of the law that an engine shall be provided with a whistle, and that it shall be blown as occasion may require, as that a soldier shall carry a gun, and that he shall exercise when commanded, and for the same reason that the law will not presume negligence against the soldier when hurt results from the use of that which the law required him to use, it will not presume negligence against the railroad company because it used that which the *541law compelled it to use. The engineer may not, to any degree whatever, wait his convenience, or select the place at which the whistle is to be sounded. When certain points are reached, or the emergency arises, the duty is imperative at that moment. Public safety is in many ways involved in the prompt discharge of this duty. We can not put the engineer under the pressure of a rule which shall hold him responsible for failing to sound the whistle on all proper occasions, and at the same time indulge a presumption against him and the railway company, when the whistle is sounded at a place of extraordinary danger, that it was wrongful and unnecessary.
Filed March 24, 1886.It is no hardship to require of him who asserts that it was wrongful and unnecessary, to produce such a state of facts as will at least enable the court to find something beyond the mere fact that the whistle was sounded.
The petition for a rehearing is overruled.