The foregoing extract clearly asserts, that there is no necessary connection between the failure to ring the bell or sound the whistle, and the killing; that both may concur in point of time, and the latter not be the result of the former. How, then, must the connection be shown? By evidence, undoubtedly. Who must produce such evidence? The party who asserts that such connection exists. The damage must be shown to be the result of the negligence; that is, the negligence must first be shown, and this fact must be supplemented by testimony tending to show that the negligence occasioned the damage. This testimony should consist of all the facts and circumstances attending the killing, so that the jury could fairly and rationally conclude whether it resulted from the failure to ring the bell or sound the whistle, or from other causes. In the case at bar no such testimony was offered; but two facts were shown to fix the defendants liability, the failure to give the required signal at the crossing, and the killing. No fact was shown tending to connect the two. If the plaintiff can recover on the evidence embodied in the bill of exceptions, it must be, because it is only necessary for the jury to find the killing of the animal on the highway, and the failure to ring the bell or sound the whistle, for there is no testimony from which they can find more. But this, we have seen, is not sufficient. Upon the case made, it was the duty of the court to declare as a matter of law that the plaintiff was not entitled to recover.

This conclusion has been reached after a careful consideration of the case of Owens v. Hann. & St. Jo. R. R., 58 Mo. 386; and Howenstein v. Pac. R. R., 55 Mo. 33.

The judgment must be reversed and the cause remanded. All the judges concur, except Judge Vories, who is absent.[[306]]

BRATTLEBORO v. WAIT
Supreme Court, Vermont, February Term, 1872.
Reported in 44 Vermont Reports, 459.

Action on the case, to recover damages sustained by reason of the defendant’s neglect and refusal to comply with the requirements of § 39, ch. 83 of the General Statutes, and § 1 of No. 6 of the acts of the legislature of 1865. Demurrer to the declaration by the defendant.

The court, September term, 1870, Barrett, J., presiding, sustained the demurrer, and rendered judgment for the defendant. Exceptions by the plaintiff.

The opinion of the court was delivered by.—

Ross, J. The question in this case is whether the defendant as cashier of the Windham County Bank for the years commencing April 1, 1864, and April 1, 1865, and of the First National Bank of Brattleboro for the years commencing April 1, 1866, and April 1, 1867, is liable for any loss that may have resulted to the town, by his neglect to return to the town clerk of the plaintiff, for the first two years named, the names of the stockholders in the Windham County Bank, agreeably to the requirements of § 39, ch. 83 of the General Statutes, and for the last two years the names of the stockholders of the First National Bank of Brattleboro, agreeably to the requirements of § 1, of No. 6 of the acts of 1865; or whether the penalties imposed by § 47 of ch. 83, and by § 5 of the act of 1865, are the only remedies given for the neglect of the defendant to perform the duties imposed by the two sections first above named.

These duties are created solely by the statutes named, and by them are superimposed upon the defendant in addition to those duties which were incumbent on him by reason of his acceptance of the office of cashier. The principle, that the law will furnish a remedy to a party injured by the neglect or non-performance of a duty imposed on an individual by statute, where the statute itself furnishes no remedy, is too familiar and well established to need the support of authorities. If the statute which imposes a new duty also provides a particular remedy, that remedy is usually the only remedy the injured party has. In Regina v. Wigg, 2 Salk. 460, the court says: “Where a new penalty is applied for a matter which at common law was an indictable offence, either remedy may be pursued; but where the statute makes the offence, that remedy must be taken which the statute gives.” Lord Mansfield, in Rex v. Robinson, 2 Bur. 799, stating the doctrine more fully, says: “The true rule of distinction seems to be, that where the offence intended to be guarded against was punishable before the making of such statute, prescribing a particular method of punishing it, there such particular remedy is cumulative, and does not take away the former remedy; but where the statute only enacts ‘that the doing any act not punishable before, shall for the future be punishable in such and such a particular manner there,’ it is necessary that such particular method, by such act prescribed, must be specifically pursued, and not the common law method of an indictment.” The doctrine stated in these early leading cases is as applicable to civil as to criminal prosecutions. The question then is, was the penalty or forfeiture of $100 provided for by § 47, ch. 83 of the General Statutes, and of $500 provided for in § 5 of the act of 1865, intended for the remedies to the plaintiff for the non-performance by the defendant of the duties imposed by § 39, and by § 1. We think they were. The penalties under these statutes are given to the town, as the party injured or aggrieved by the failure of the defendant to perform the duties imposed, as has been held in Newman, Treasurer of Brattleboro, v. this defendant, 43 Vt. 587, in which the plaintiff through its treasurer sought to recover the penalty imposed by § 5 of the act of 1865, for the defendant’s failure to comply with § 1 of that act during the years 1866 and 1867. It is unnecessary to repeat what has been said in that case. It would be inconsistent with the principle we have already stated, to hold that the plaintiff can recover the penalty as the party aggrieved, and also all damages it has sustained by the defendant’s failure to perform a duty wholly imposed upon him by the statute. Such holding would give the plaintiff a double remedy for the same failure by the defendant to perform a duty imposed by statute, and due to the plaintiff only by the force of the statute; the penalty prescribed, and an amercement in damages for all the plaintiff can show he has suffered from such failure. The penalty cannot be held to be a cumulative remedy; for before the passage of the act no duty was due from the defendant as cashier to the plaintiff, and, therefore, there could be no remedy, and nothing for the penalty to be cumulative to. Such holding would interpret one and the same act as giving a double remedy, which is contrary to all rules of interpretation, and only allowable when it is given in express terms by the statute.

The judgment of the county court is affirmed.[[307]]