Myers v. Richmond & Danville Railroad

Ruffin, J. In the opinion of this court, the plaintiffs have just cause to complain of the action in the court below in respect to the issues submitted to the jury. As framed and responded to, .they present the plaintiffs’ case solely with reference to the defendant’s right to use the highway, and make it to depend upon the single question, *350 whether the user • amounted to á partial or complete obstruction of the passage across the bridge. His Honor in fact throughout the entire trial seems to have considered the case only from this one point of view — as also did the defendant’s counsel who argued the cause before us — thus excluding all inquirjr as to the defendant’s negligence in putting into the highway an object of a character likely to alarm the horses of those who might pass along it, which inquiry is certainly material to the plaintiffs’ right of action, and we think fairly raised by the pleadings. That, one may be responsible for injuries resulting from negligently and unnecessarily putting into a highway objects likely to frighten horses of ordinary gentleness, is shown by the authorities. In Wharton’s Law of Negligence § 107, it is said, that inasmuch as it is neither unnatural nor unusual for horses, when travelling, to become frightened at extraordinary noises or sights, so therefore he, who upon a road thus trav-elled by horses, makes such noises or exhibits such spectacles, is liable for any damages caused by their taking fright. The same author at section 836 notes the distinction between “ necessary and unnecessary instruments of alarm,” and says that the former — such for instance as a steam whistle on a locomotive, or the like — being essential to important industries, are tacitly, if not expressly, licensed by the state, and the necessary use of them is not negligence, even though animals should be frightened thereby and injury ensue; though it is otherwise, he declares, when the use is not necessary to the industry. In accordance with the principle thus laid down by the text-writer, the supreme court of Massachusetts in Jones v. R. R. Co., 107, Mass., 261, held the defendant to be liable for injuries sustained by the owner of a horse that took fright at a derrick, erected upon the company’s lands, by swinging *351 an arm over the track; such an object, they declared, being calculated to terrify animals. Of course the responsibility of the defendant in this action, depends upon the question, whether the use which it was making of the highway at the time of the plaintiff’s mishap, was a reasonable one or not, and this in turn depends upon the character of the object, the urgency of the occasion, the manner in which the road was frequented, and the hazard to travellers attending an obstruction at the particular locality. These are all matters to be determined by a jury under such instructions with regard to the law, as may be given them by the court; but as to which it is not proper that this court should intimate an opinion at the present. The issues submitted are not in themselves objectionable, but they touch only one phase in the plaintiffs’ case, and it is'due to them that the other should be passed upon also, and therefore there must be a venire de novo. Error. Venire de novo.