Morgan v. Norfolk Southern Railroad

MerrimoN, J. The Court, among other things, said to the jury on the trial that: “ 1. There is only one view presented by the evidence, in which the jury can find that the injury was caused by the *252 negligence of the defendant. If the engine and tender of the defendant company were crossing and re-crossing the .street of the town at a public crossing, and when the plaintiff, approaching the crossing, reached a point from fifteen to thirty yards from the crossing, the engineer saw the plaintiff, and caused the engine, then on or partly on the crossing, to make an unnecessary noise, and thereby so frightened the plaintiff’s horse as to cause the horse to turn suddenly and injure the plaintiff’s wife by upsetting the buggy, then the jury will respond to the first issue ‘Yes.’ It is not negligence to ring the bell when the engine is passing over, or about to pass over crossings, unless it is done wantonly, or for the purpose of frightening the horse. If it was done for ihe purpose of warning persons to avoid danger, it would not be an .unnecessary noise. “ 2. The defendant company had a right to make such noises as were necessarily incident to running or reversing the engine, and if only such noise as is used and necessarily incident to moving the engine and cars attached was made, then the defendant was not negligent, and the jury would respond to the first issue ‘ No.’ The burden is on the plaintiff to satisfy by a preponderance of testimony that the injury was caused by defendant’s negligence.” The appellant contends that this instruction is erroneous to his prejudice. We think otherwise. On the trial, there was no evidence to ¡Drove that the defendant’s railroad, its shifting tracks near its depot and the street over which the plaintiff was passing in his buggy at the time he suffered the injury complained of, was negligently, badly or improper^ located or constructed, as alleged in the complaint; nor to prove that the plaintiff was injured by the defendant or its agents or servants, otherwise than by making such unusual, unnecessary, sudden and loud noises by ringing its bell, sounding its steam whistle, the escape of steam making a hissing, fearful sound, and the swift move *253 ment of its locomotive with cars attached, as greatly frightened the horse of the plaintiff while hitched to his buggy in the street, and rendered him unmanageable. There was evidence of the plaintiff, tending to prove that the horse, though gentle, was so frightened, and as a consequence upset the buggy, doing serious injury to the wife of the plaintiff and incidentally to himself. There was also evidence of the defendant to the contrary, and tending to prove a total absence of negligence on its part and that of its servants. So that the first and principal issue submitted to the jury was as to the alleged negligence on the part of the defendant done in the wray indicated. The Court, therefore, properly directed the attention of the jury to the single view of the evidence that went to prove negligence. The instruction as to the character of noise that would constitute negligence was very general — perhaps too indefinite, but this was not to the prejudice of the appellant — it was rather in his favor — it implied broadly any “ unnecessary ” noise, and left the jury quite at large in this respect. Nor was the instruction objectionable in other respects. The defendant certainly had the right on its roadway to move its locomotive, with or without cars attached to it, in the orderly course of such work, to and fro in making up its trains, detaching cars from one already formed, and shifting them from one train or place to another. The noises ordinarily — naturally—incident to this work when done where it may lawfully be done, do not constitute negligence or nuisance. Railroads are lawful things, useful and highly important to the well being and prosperity of society, and must be tolerated and encouraged, notwithstanding the annoying and fearful noises sometimes naturally incident to their use in particular places that frighten horses and other animals, and thus occasion accident and injury to individuals. Harm thus sustained is damnum absque injuria. *254 The defendant had the right, indeed it was its duty, at appropriate times to ring its bell and sound its steam whistle, particularly at and near to where its road crossed the street and other roads, to give notice of the approach of moving trains and possible danger. It is not to be understood, hqw--ever, that a railroad company has the right to make unnec•essary, unreasonable, furious and fearful noises that serve no practical and useful purpose, particularly in the immediate neighborhood of where persons are constantly passing .and repassing with their horses and vehicles. The noises tolerated are only such as are reasonably incident and necessary to the proper use of the railroad and the machinery appropriate to it. So much of the special instructions asked for by the appellant as he was entitled to have was plainly embraced by those given. It is not necessary, indeed not proper, to. give instructions not pertinent to any reasonable view of the evidence before the jury. The very purpose of instructions is to direct the attention of the jury to the law applicable as it bears upon the evidence. Any instructions beyond that only tends to mislead and confuse. The attention of the jury was fairly directed to the principal issue, and the law bearing upon it was stated, certainly not to the prejudice of the appellant. His assignment of error •cannot be sustained. Accepting the finding of the jury as correct, the injury sustained by the appellant was the result of accident and misfortune. No error. Affirmed.