Presby v. Grand Trunk Railway

Clark, J. To maintain his action the plaintiff must show that his injury was caused by the defendants’ want of ordinary care. He complains that the defendants were negligent in blowing off steam and thereby frightening his horse; in not giving notice of the approach of the train by ringing the bell for a distance of eighty rods before reaching the crossing; in leaving box-cars on the side track, one of which was within the limits of the highway *618 in such a position that the view of the train was obscured; in not having a flagman or gates at the crossing; in placing a hand-car and semaphore post in the highway; and in not extending the planking at the highway crossing over the depression at the joint of the rails, and thus leaving the crossing of insufficient width. Having produced evidence tending to establish the matters complained of, the questions of the plaintiff’s care and of the defendants’ negligence were properly submitted to the jury. The motion that a verdict be ordered for the defendants was based upon the claim that the escape of steam from the engine, being regulated by an automatic valve such as is generally used by railroad companies, was involuntary, and could not be controlled by the defendants’ servants, and therefore the defendants were not chargeable with negligence on account of the noise of the escaping steam; and that the other alleged negligent acts and omissions were too remote and immaterial. The operation of the automatic pop-valve was simply to allow the steám to escape whenever the pressure exceeded one hundred and thirty-five pounds. It did not in any way affect the quantity of steam generated. The amount of steam produced was under the control of the defendants’ servants in charge of the engine, and the pressure upon the pop-valve depended upon the management of the fire and the condition of the engine as to working steam or standing still. The evidence was, that valves of a higher pressure are sometimes used, and it could not be said as matter of law that the valve upon the defendants’ engine was suitable. It was a question of fact for the jury to determine, whether under the circumstances the defendants were guilty of negligence in causing the fright of the plaintiff’s horse by the escaping steam; and in determining this question it was material to inquire what precautions the defendants used to warn travellers upon the highway of the approach of the train, and what opportunity the plaintiff had of knowing that the engine was standing near the crossing; and for this purpose the evidence whether the bell was rung, whether the box-cars obstructed the view of the train, and whether any warning was given of the presence of the engine at the crossing, was competent and material. So, also, the evidence as to the location of the hand-car and semaphore post, and the depression in the road-bed within the limits of the highway, and the width of the planking at the crossing, was competent upon the question whether the defendants were exercising ordinary care to guard against injury to travellers whose horses might be frightened by the locomotive and the noise of escaping steam, and upon the inquiry as to the cause of the accident to the plaintiff. Gordon v. Railroad, 58 N. H. 396. The testimony of Hinman, the highway surveyor, that he called the attention of the defendants’ station agent to the depression between the ties at the end of the planking on the crossing, that it *619 was nine inches or more from the surface of the ground to the top of the rail, was competent to show that the defendants had notice of the condition of the crossing at that point before the accident. Upon similar ground, the testimony of Potter and others that engines standing at the station frequently blew off steam and frightened horses was admissible to show the defendants’ knowledge of that source of danger to travellers on the highway crossing, which was a material fact to be considered in determining whether the defendants exercised reasonable care to prevent injury from that cause. The evidence as to the practice of leaving cars on the side track in such a position as to obstruct the view of a train at the station to a traveller on the highway, as to ringing the bell and blowing off steam, was admissible as tending to show what was done at the time of the accident to the plaintiff. Hall v. Brown, 58 N. H. 93 ; Parkinson v. Railroad, 61 N. H. 416. Although the pop-valve was automatic, the quantity of steam was controlled by regulating the lire, and the evidence of blowing off steam tended to show that the pressure usually carried at that point was such that steam was liable to escape through the valve while the train was standing at the station. Judgment on the verdict. Smith, J., did not sit: the others concurred.