Petrie v. New York Central and Hudson River Rail. Co.

Parker, Ch. J.

(dissenting). Hnder the rulings of the trial judge now to be affirmed, notwithstanding the continuous ringing of a bell and blowing of a whistle from one station to another, a jury may be permitted .to find that .a railroad corporation is guilty of negligence in failing to give proper warning to a person crossing its tracks on a public highway miles from the last station from which the train injuring such person departed. The reasoning upon which the decision rests leads to this result: If all the warnings that the ingenuity of man may be able to devise be employed in a given instance, the jury may still find that the train negligently approached the crossing by failing to give proper warnings. In practical effect, therefore, it permits the jury to find negligence where there is none and no proof of any; indeed where all the evidence bearing upon the subject tends to prove freedom from negligence — a most illogical result of the decisions in actions founded upon the fault of a defendant, but one from which it is now evident the legislature can alone relieve.