The trial court, after having found certain facts bearing upon the question of the negligence of the defendant and the contributory negligence of the deceased, expressly finds that the deceased was not guilty of contributory negligence, and that the accident "was caused by the defendant's negligence in having failed to blow the whistle within eighty rods of the crossing."
In the opinion of the majority of this court the finding as to the absence of contributory negligence on the part of the deceased, is regarded as a conclusion of fact, which this court cannot review, and in that opinion I concur. In that opinion this view is also taken of the finding as to the negligence of the defendant, and from this I dissent.
The conclusion of the trial court as to contributory negligence is based upon a number of facts of such a nature that, with regard to the question of what a prudent man would or would not do thereunder, the law can lay down no specific rule in advance. It can only say to all persons — you must act as a prudent man would act under the like circumstances. It cannot inform us what a prudent man ought to do or refrain from doing under all or any given circumstances. In most cases involving the question of negligence it cannot in advance tell what its ideal prudent man ought or ought not to do. It contents itself with warning the trier that the standard he adopts ought to be *Page 272 that of the prudent man, but it leaves the trier to say what that standard is. Now this precept to act as a prudent man acts can hardly be called a rule, guide or measure of conduct, in any just sense of those terms. It is as vague as an exhortation to do the best you can under the circumstances But it is from the nature of the case the best the law can do.
In most cases of negligence therefore, where, as is usual, the facts bearing upon that question are numerous, complicated and peculiar to the specific case, the law necessarily leaves to the trier, not only the question what did the defendant do or omit to do, but the further question also, what is the standard or measure by which his liability for his acts or omissions in a given case shall be determined.
"When the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's conduct by that, turns him out of court, upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence, a definite rule of law." Detroit MilwaukeeR. R. Co. v. Van Steinburg, 17 Midi., 99.
This is precisely what the law in most cases must leave to the trier, whether such trier be one man, as under our practice he may be, or a jury of twelve men.
The question of contributory negligence in the case at bar is clearly one of this character, to be determined by the trier, and his determination as such is as conclusive upon this court as the verdict of a jury would be in like circumstances.
But with regard to the question of the negligence of the defendant, the case on the finding is widely different. It must be borne in mind that the conclusion of the trial court in this case as to the negligence of the defendant is based solely upon one fact, namely, failure to sound the whistle within the eighty rod limit. It is true that other facts are found, but the conclusion aforesaid does not profess to be, and is not, based upon them. *Page 273
The train was properly manned; it was running at a lawful rate of speed, on a road and at a time where and when the defendant had a right to run it. It is not found or suggested that the engineer and other servants of the defendant on this train were inattentive or careless in any respect whatever, save in this, of sounding the whistle. No other fact is found or suggested which shows, or tends to show, any want of care or attention to duty on the part of the defendant, save in the one particular before mentioned. Had the whistle been sounded within the eighty rod limit, all the other facts in the case remaining as the court finds them, the trial court would undoubtedly have found no negligence.
It is not found that no signal was given by the whistle, or that it could not be heard, and heard distinctly, at the crossing, and along the highway near the crossing, nor is the finding based on any such state of facts. It is expressly found that the whistle could be so heard and that the bell was continuously rung.
The belief of the deceased that the whistle was sounded at a greater distance than it in fact was sounded, if he had any such belief, and the other facts found, had a bearing on the question of contributory negligence perhaps, but the conclusion in question is not based upon any of those facts. If the whistle had been blown within the eighty rod limit, the trial court would have found no negligence, notwithstanding the existence of all these other facts.
It may be thought however that the further finding of the court, that a "due regard for the safety of persons passing said highway toward and over said crossing, requires that the engine whistle upon approaching trains be blown within eighty rods of said crossing," is a finding of fact bearing upon the conclusion of negligence.
To say that public safety requires the whistle to be sounded within the eighty rod limit, is but another way of saying that the law requires this to be done. Even if public safety did require it, the defendant was not liable for not doing what public safety required, unless it failed to perform some duty *Page 274 which the law imposed upon it. So that after all the decisive question in the case was — does the law require that the whistle be blown precisely within the eighty rod limit, and not elsewhere, on penalty of being found negligent; and this, of course, is a question of law and not of fact.
Similar findings in other cases have been so construed by this court, and have been reviewed and set aside. InBailey v. Hartford Conn. Valley R. R. Co.,56 Conn., 444, the trial court found "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;" but this court found no difficulty in holding this to be a conclusion of law, which it could and did review. So in Beardsley v. City of Hartford,50 Conn., 529, the trial court found that travel along the sidewalk in question was endangered by the basement opening, and that public safety required the city to enclose it, yet this court reviewed and set aside that conclusion. The findings in the two last named cases seem to be quite as strong in this respect as the one in the present case. Other cases to the same point might be cited. The conclusion of the trial court therefore, in the case at bar, on the question of negligence, seems to be based entirely upon the failure to blow the whistle within the limits prescribed by the statute.
Now whenever the liability of a defendant depends upon the doing or failure to do some one specific act, as in this case, and the trier finds the existence of such act or omission, his conclusion as to the existence thereof is final, but his finding of liability therefrom depends upon whether in so doing or omitting to do the defendant violated any duty, and that is always a question of law.
In Gallagher v. N. York N. Eng. R. R. Co.,57 Conn., 442, the trial court made a finding of facts, and expressly found that the defendant was negligent; but this court reviewed that conclusion and came to an opposite one. In regard to the finding of negligence in that case, this court said — "It is *Page 275 predicated entirely upon the want of a fence between the two railroads. Upon this part of the case the decisive question is, whether it was the duty of the defendant to erect such a fence, and this is a question of law." In Williams v. Town ofClinton, 28 Conn., 264, it is said: — "The opinion of the court may properly enough be taken when the case turns upon the legal effect of a single fact." In Beardsley v.City of Hartford, before cited, the trial court found the facts, and expressly found negligence on the part of the city in not fencing the basement opening, and no contributory negligence on the part of the plaintiff, yet this court reviewed that conclusion of negligence, and held that it depended upon the further question whether any duty rested upon the city to fence the opening, and that was a question of law. In Bailey v. Hartford Conn. Valley R.R.Co., supra, the trial court made a finding of facts, and further found that in not sounding its whistle eighty rods from the grade crossing, and in first sounding it where it was sounded, the defendant was guilty of negligence. This court however reviewed that conclusion, and held that in doing what it did, under the circumstances stated, the defendant was not guilty of negligence.
The case at bar, upon the point now in question, comes I think within the principle of the cases cited. Suppose the trial court, finding all the other facts in the case just as it has done, had found that the whistle was sounded at the whistling post within the eighty rods, and then had found that the accident was caused by the negligence of the defendant in failing to blow the whistle within forty rods of the crossing, can there be any doubt that this court could review such a conclusion ? And if another trier, on a similar state of facts, holds the defendant liable for not blowing the whistle at ninety rods, is this court prepared to say it cannot review that conclusion? Upon principle as well as upon authority, therefore, I think the conclusion of the trial court upon the question of the negligence of the defendant, is one which this court can review.
The question then is, did the court below adopt the correct *Page 276 rule as to the duty resting upon the defendant? Unless this court is prepared to hold that the statutory duty to blow the whistle within the eighty rod limit is imperative under any and all circumstances, then it seems to me the trial court did not adopt the true rule. In Bailey v. Hartford Conn. ValleyR. R. Co., before cited, this court said: — "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 most likely to accomplish the object which the statute had in view. * * * If by reason of curves in the railroad, or by reason of high bluffs on either side, the signal when given at the 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 majority opinion in the present case seems to take the same view of the law.
This then is the rule of law as held by this court, namely, that 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.
Now apply this rule to the facts in this case. The train was running at the rate of forty miles an hour. The whistle signal was blown when the train was distant from the eighty rod limit about four hundred feet. The bell was rung thence continuously till the train passed the crossing. While the whistle was sounding the two long and two short blasts, the train must have passed over a quite considerable part of the four hundred feet. The signal was loud enough *Page 277 to be plainly heard at the crossing, and along the highway where the deceased was driving. The train passed over the space between the crossing and the point where it first began to sound the signal in about thirty seconds. It passed over the distance between the whistling post and the crossing in about twenty-three seconds. In blowing the whistle where it was blown, persons on the highway near the crossing had notice of the approaching danger some six or seven seconds earlier than they would have had if it had been blown at the whistling post. Surely with an adverse wind and this high rate of speed, a warning of thirty seconds rather than twenty-three seconds is evidence of attention and care rather than of negligence.
Adopting the language of the court in Bailey v.Hartford Conn. Valley R. R. Co., supra, "to call such an act when done in such a manner, negligent, seems a misapplication of terms." Under the rule laid down by this court the defendant was clearly not negligent. Under the rule laid down by the trial court the defendant was negligent and would have been negligent if it had blown the whistle at any point outside of the eighty rod limit, however near, without regard to the speed of the train, the condition of the weather or any other circumstance whatever.
The case at bar is "a sad case, and appeals powerfully to one's sympathy, but we must not allow it to become an occasion of injustice. The defendant is entitled to have the law fairly and impartially administered." Nolan v. N. York,N. Hav. Hartford R. R. Co., 53 Conn., 476.
In holding the defendant liable for full damages, I think the trial court committed an error in law, and that the judgment should be reversed.