A railroad company whose track crosses a highway at grade is liable for want of care while using the highway, the same as every one else who uses the way. It is bound to exercise the same ordinary care *Page 214 incumbent on every traveler. It has no immunity which excuses it from a less degree of care when about to cross an ordinary road, than if its road was of the latter description.Beers v. Housatonic R. Co., 19 Conn. 566, 576. The care imposed by law upon railroad and other travelers increases with the dangers of the crossing. The failure to use this care is negligence. If the failure arises from not doing appropriate acts, or not making appropriate orders in respect to the general use of a highway at a particular crossing, the negligence is ordinarily the direct negligence of the corporation; if it arises from the conduct of an engineer under the peculiar circumstances of the case, it is the negligence of a servant for which the railroad is responsible.
Reasonable care in the use of a country highway is not reasonable care in the use of a city street. "The requirement of vigilance is to be measured by the total of danger."Andrews v. New York N.E. R. Co., 60 Conn. 293, 298. To run a train at a high rate of speed through inhabited parts of a city, without special care to see that the track is clear, is negligence. Daley v. Norwich W. R. Co.,26 Conn. 591, 595. It goes without saying, that to run a train at the rate of fifty miles an hour upon a city street, unless that portion of the street is for the time being exclusively appropriated by proper gates or otherwise for the railroad use, is negligence. It is doubly negligence if the crossing be so situated that an approaching train cannot be seen, and its signals of approach are insufficient and uncertain.
It is said that when the State requires certain precautionary measures to be taken and authorizes the railroad commissioners to require others, it inferentially relieves the railroad from all other care. Such a claim is wholly untenable. Suppose the State should say: No person shall recover for injuries done by railroad companies in the operation of their trains. Would such a law be within the power of the legislature? Would it be any different in principle, if the State should say: No damages shall be recovered unless the injurious act is done in disobedience of State regulations.
This claim is based on a total misapprehension of the purpose *Page 215 and justification of such regulations. They are police regulations to prevent, as far as practicable, the occurrence of injuries; they have no relation to the rights of the injured party, unless it be by operation of the rule that a person using a highway in violation of police regulations is primafacie in the wrong. The legislation is preventive; so far as it affects the rights of injured parties it may be cumulative, but is not restrictive. The legislature says: You shall do certain things for the protection of human life; it does not say: Do those things and you may destroy life at pleasure. Such a claim is not justified by the unnecessary and unguardeddicta in Dyson v. New York N.E. R. Co., 57 Conn. 9, 23. These dicta were to a certain extent modified by other portions of the opinion; and have been substantially overruled in several cases. Bailey v. Hartford C. V. R. Co., 56 Conn. 444,458; Rowen v. New York, N. H. H.R. Co., 59 id. 364, 370; Bates v. New York N.E. R. Co., 60 id. 259, 267. In the case last cited the court says: "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." And the dissenting opinion, by TORRANCE, J., also repudiates the dicta in the Dyson case as relieving the railroad from the use of ordinary care. "It was the duty of the defendant in the case at bar to sound the whistle at such place as would under all the then existing circumstances be most likely to give ample notice of the approach of the train to all who were about to use the crossing." p. 276. Clearly, under this rule, it is negligence not to repeat the sounding, when under existing circumstances such repetition is necessary to give ample notice.
I am confident that these propositions cannot be gainsaid: 1. The duty of a railroad company in the use of a highway crossing at grade involves the use of ordinary care to avoid injury to other travelers, the degree of care increasing with the dangerous nature of the crossing. 2. The legislation providing general regulations is preventive, defining duties to the public, but not taking away rights of individuals *Page 216 who may be injured by actual negligence. 3. Driving a train at the rate of fifty miles an hour across a highway in the most populous part of a city or borough is necessarily negligence, unless steps are taken to effectually guard against any other use of the highway while the train is passing. 4. The failure to use, in approaching such a crossing, every means of notice that is in fact necessary to give ample notice of a train's approach, is negligence. 5. No general regulations by the legislature, and no failure to make regulations by railroad commissioners, can be so construed as to take from those who have been injured by the actual negligence of a railroad company their right to "remedy by due course of law" for the injury done them. The case at bar comes within these propositions, and the judgment should therefore be sustained.
I understand, however, that the majority of the court treat these questions as excluded from consideration by the finding of the trial court; because the trial judge puts his conclusions of negligence solely on the personal conduct of the engineer in view of the exigencies of that particular occasion, and puts the personal negligence of the engineer solely on the fact that he did not continue sounding the whistle until the crossing was reached; and found no other ground of negligence. I must dissent from this view; it seems to me that it is too narrow a treatment of the finding; that the trial judge distinctly finds facts in accordance with the allegations of the complaint, from which the negligence of the corporation follows as a necessary legal conclusion. This is sufficient to support the judgment, notwithstanding the trial court may have erroneously treated the negligence as personal to the engineer, and, as the reason for its judgment, specified a portion of the facts insufficient of themselves to support the correct conclusion drawn. A sound conclusion is not nullified by an insufficient reason. Supples v. Cannon, 44 Conn. 424,431; Thresher v. Stonington Savings Bank, 68 id. 201, 205.
The personal duty of an engineer in sounding signals may be determined by statute and the orders of his master, so that he may not be liable in case of obedience, unless an emergency *Page 217 occurs where he must be the judge. But whether the engineer is personally liable or not, the corporation is liable if it fails to take such measures in respect to a peculiarly dangerous crossing as are in fact necessary to its use of the highway with reasonable care.
I think there is no error in the judgment of the Superior Court.