The opinion
MANTON, Circuit Judge
(dissenting). The highway or road, over which the deceased was proceeding, leads from the state highway in Lyndon, and crosses the railroad tracks just before reaching an electric light plant owned and operated by the village of Lyndon-ville. The deceased and a fellow workman were employed by the village at the electric light plant, and in the performance of their duties drove across the tracks with an auto truck loaded with ashes, which were dumped in the roadway, and then were returning, crossing the track, when they were struck by the plaintiff in error’s engine. The accident occurred at about 2:15 p. m. The physical situation surrounding this crossing made the approach to the crossing of the track very dangerous. There is a sharp, obscuréd curve north of the crossing. There is an embankment, resulting from a cut through the rock at this curve, through which the engine passed. No automatic bell was maintained at the crossing. There is evidence that for some years prior to 1905 there was a sign, “Look Out for the Cars,” near the crossing, but since then there has been no such warning. The roadway across was planked in between the rails as well as on the outside. The. road was kept in repair by' the town of Lyndon for more than 40 years prior to the accident. At this time there was a gate at the fence that enclosed the railroad’s right of way. Long use by the public and adoption by the town authorities may be established by any evidence that shows a town has kept the road In repair. Whitney v. Town of Essex, 42 Vt. 520 ; Brown v. Swanton, 69 Vt. 53 , 37 Atl. 280 . “All highways do not appear of record. They may be established by dedication, use, and adoption by the town, and nothing appear of record” says the Supreme Court of Vermont in Ladd v. Waterbury, 34 Vt. 426 .
Was there sufficient, or, indeed, any, evidence which required that the question of whether or not the road was a highway by dedication, use and adoption to be submitted to the jury? The trial court submitted for special finding, the following question: “Was the road leading over the crossing a public highway?” The jury answered: “Yes.” If there is any evidence to support this finding, within the rules of law prevailing in Vermont, then the question of whether or not the road was a public highway, as discussed in the prevailing *924 opinion, is interesting, but not for our solution, for it became a question of fact for the jury. Likewise if such finding has evidence to support it, the charge of the trial judge, said to be erroneous in the prevailing opinion was a proper instruction, for the statutes of Vermont require (G. L. 5173):
“A bell of at least thirty pounds weight shall be placed on each locomotive engine, and be rung at the distance of at least eighty rods from the place where the railroad crosses a road or street at grade, and be kept ringing until it has crossed such road or street, or the steam whistle may be blown instead of ringing such bell.” - .
There is evidence that, after the old Wilder paper mill was discontinued, a town electric light plant was built in its stead, and this highway or road was its sole avenue of approach to the state highway. In addition to serving the electric light station, it was the only means of access to three residences, Woods, Cheney, and Wilder. All were occupied at the time of this occurrence. It was always an open road, except a gate was put across by the railroad company along the line of its fence in 1900. This fence was a requirement of railroads under the Vermont statutes. G. L. Vt. 5195. Many crossings in rural communities have gates of like character. Repairs were made to this road by the highway commissioners, such as using a road scraper and plowing the snow off in the winter. Road Commissioner Clement says, “It is a comfortable highway,” and had been “used by the public for a number years,” and that he made such repairs as were necessary on the road, and it showed signs of long usage. Hovey, a road commissioner for nine years, worked on that part of the road extending from the railroad track to the Wilder home, and also that portion “which extended from the main highway down around, and ran along parallel with the railroad track, and past the gate, and up to the Hall house.” Hall said that he saw Road Commissioner Clifford, four or five years before the occurrence, obtain dirt “from the gravel bank on the state highway, and use it to repair a washout under the gate on both sides, clear to the rails.”
Clifford, road commissioner in 1917, 1918, and 1920, employed one Hall to repair the road to the electric light station, and paid him by town order for filling with “lime and dirt” a hole which had been gullied out under the gate in the pitch between the right of way fence and the crossing. Mr. Way, another commissioner, repaired a washout between the gate and the railroad track, and worked with a road machine from the gate to the culvert near the Woods house-on more than one occasion. It was said that east of the railroad tracks the soil of the road was firm, with very good drainage, and never needed any repairs. Way says that he “rounded the roadbed with a road machine from the Hall (Wilder) house down to the main highway.” This road was used for about 48 years. For 7 or 8 years before the time of trial, the town rolled snow crossing to the flat east of the crossing, and Hall, who lived near the crossing and east of it, said at least a .motor truck a day used the road crossing, and at times four or five. The road was used in the summer time by picnickers and fishermen, who went to a river nearby and east of the *925 crossing for pleasure. Both Road Commissioners Cheney and Ranney gave testimony as to repairs made to the road. A former engineer of the railroad company said that it was customary for engines to blow for this crossing when passing. This evidence was ample to raise a jury question as to the dedication of the road and its use and adoption as a public highway. Its adoption by the town is clear, from the repairs made to it, and .the care exercised by the railroad company in the use of a sign in former years, a gate in recent years, and a signal to wayfarers was some evidence for the jury. A dismissal, if granted, for want of proof, after hearing such evidence, could not he sustained. It was sufficient proof to satisfy men of the community familiar with the kind of repairs given to country roads to pronounce this a highway by dedication and use by the town.
If it was a highway, as found, then, as the court charged, it was the duty of the plaintiff in error to ring a bell or blow the whistle at this crossing in accordance with the statute, and, if the jury found a failure to ring the bell or blow the whistle was the cause of the accident, their verdict must be for the defendant in error, providing the deceased was free from contributory negligence. Indeed, the statute in question is part of a general act for signal or warning at railroad crossings. The first (section 5172) used the words “public highway,” where it requires warning boards at crossings and provides°.
“A railroad corporation shall maintain at every public highway or street where the same is crossed by its railroad at grade, warning boards of such description as the Public Service Commission approves.”
And the next (5173) is the act in question requiring the signal, and it used the word- “road.” Both sections are part of the same act passed at the same session. It is therefore apparent that the Legislature intended the distinction between “highway” and “road” as argued for in this opinion. “Road,” according to Webster’s Dictionary, is synonymous with “way, highway, street, lane, pathway, route, passage across.” It is commonly referred to as a way for horses and carriages. Wherever any other meaning is intended to be given to a road by the statutes of Vermont the phrase “public road” or “highway” is used. Laws Vt. 1797, c. 26, pp. 347, 360; Rev. St. Vt. 1840, c. 20; Comp. St. Vt. 1851, c. 22; Vt. St 1894, c. 154; Pub. St. 1906, c. 170; and G. L. 1917, c. 191.
Constantly the word “road” has been used where a public road is not necessarily meant. The phrase “a road used as a public highway” must mean to the legislators that the word “road,” standing alone, is not the equivalent of a highway in its legal sense. While we are not referred to any authoritative decision on the point by the highest court of Vermont, other states have had occasion to pass upon statutes where the word “road” is used in their respective statutes. In Texas a similar statute as to a required signal for a railroad crossing was considered, and it was there held that “road” did not mean a highway. I. & G. N. Railroad Co. v. Jordan, 1 White & W. Civ. Cas. Ct. App. § 859. See, as to California, Orcutt v. Pacific Ry. Co., 85 Cal. 291 , 24 Pac. 661 ; Vance v. Atchison, T. & S. F., 9 Cal. App. 20 , 98 Pac. 41 ; Maine, Windham v. Cumberland *926 Co., 26 Me. 406 ; Massachusetts, Commonwealth v. Gammons, 40 Mass. (23 Pick.) 203 ; Jaquith v. Richardson, 49 Mass. (8 Metc.) 215; Nebraska, Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848 , 63 N. W. 51 , 28 L. R. A. 824; Kentucky, L. & M. Ry. v. Bodine, 109 Ky. 509 , 59 S. W. 740 , 56 L. R. A. 506.
The statute is absolute, requiring the warning referred to, and if the “road” means a way for horses and carriages or automobiles, there was the certain duty imposed upon the railroad company to sound a whistle or ring a bell. An admitted failure so to do proved a negligent act as a matter of law. The charge of the learned trial judge was therefore correct.
We are in, accord in support of the defendant in error’s claim that the evidence required the issues of the deceased’s freedom from contributory negligence to be submitted to the Jury. As to the requested instruction by the plaintiff in error on the law of contributory negligence, no error was committed in the refusal. The request correctly states the rule of law, but the trial judge had fully and properly instructed the jury as to contributory negligence. It is not error to refuse to charge the same rule couched in different phrase.
For these reasons, the judgment should be affirmed, and I must therefore dissent from the judgment about to be announced.