The opinion
Rich, J.:
This appeal is from a judgment awarding damages to the plaintiff for injuries received in consequence of a collision between the vehicle in which he was riding and the locomotive attached to one of defendant’s passenger trains.
The accident occurred on a highway crossing over which defendant’s locomotive passed at a high rate of speed.
There was a conflict in the evidence as to whether any signal was given as the train approached the crossing. The engineer testified that the locomotive was equipped with an automatic bell attachment ; that the bell was ringing at the time, and that he blew the -whistle as he approached the crossing, and several witnesses were called by the plaintiff, who testified that they did not hear either the bell or the whistle.
It was not unlawful for the defendant to run its train at a high rate of speed at this crossing, but it was bound to give reasonable warning of its approach, not necessarily by blowing the whistle, though such a warning at the time would have been sufficient. The learned justice presiding at the trial charged the jury as follows: “You are to decide whether you believe he did blow his whistle as he said he did or whether he did not. If he did not blow his whistle, then this company would be negligent, and then the only other question would be whether or not the boy contributed to the accident.”
This was error. It cannot be held as matter of law that the defendant was negligent in failing to 'blow the whistle; this was a *651 question of fact for the jury to determine in considering the question as to whether reasonable warning was given. It was incumbent on the defendant to give reasonable and timely warning. This might be given in a number of ways ; it would be for a jury, however, to say whether it was sufficient and timely. In the case under consideration the jury might have found that the ringing of the bell, if it was rung, was sufficient. They were not permitted to pass upon that, but told that the defendant was negligent if the whistle was not blown. This was such an error as to call for a reversal of the judgment.
The judgment and order must be reversed and a new trial granted, costs to abide the event.
Gaynor, J., concurred in separate opinion.