Flynn v. Boston & Albany Railroad

Morton, J. There was evidence that the plaintiff was in the exercise of due care. He was where he had a right to be, and was doing in the usual manner the work which he had been hired to do. There was also evidence that the horse was safe and gentle. We' cannot say that there was not some evidence that the whistle was blown carelessly by being unduly prolonged. Some of the statements made by some of the plain 312 tiff’s witnesses are incredible. But the jury may have thought that they were exaggerations rather than intentional misrepresentations, and it was for them to draw such inferences and to give to the testimony such weight as they thought the appearance of the witnesses, and the circumstances disclosed by the evidence fairly justified. We think that there was no error in the instructions which were given or in the refusal to give the rulings which were requested by the defendant. In addition to those required by law at crossings, the defendant had the right to establish such signals as were reasonable and proper for the operation of its road, and if the injury and loss to the plaintiff happened in consequence of the giving of such signals by the servants of the defendant under circumstances which justified them in so doing, then, as the court instructed the jury, the plaintiff had no right of recovery, Favor v. Boston Lowell Railroad, 114 Mass. 350. Lamb v. Old Colony Railroad, 140 Mass. 79. Howard v. Union Freight Railroad, 156 Mass. 159. But a signal may be reasonable and proper in itself, and yet the circumstances may be such that it would be negligence on the part of the defendant’s servants to use it, and due care might require that the object to be accomplished by the giving of it should be reached in some other manner. It is not for the defendant to establish a signal, however reasonable and proper in itself, and say to its servants that it may be given under any and all circumstances, regardless of consequences. The engineer and conductor were not bound before giving the signal to look and see if there were any persons on the highway, and the defendant was not liable for the damages which a traveller or a teamster on a highway in close proximity to the railroad might sustain in consequence of his horse being frightened by the usual and ordinary noises or appearances which attended the running of trains. But the liability of horses to be frightened by unusual noises is well understood, and there was evidence tending to show that the plaintiff and others were at work with horses and teams only a short distance from the place where the gravel train stood, and that the engineer and others on the train knew of this, and saw the men and teams when the whistle was blown. Under such circumstances, we think that it was rightly left to the jury 313 to say whether or not that was negligence on the part of the engineer in giving the signals which were given, even though they were the signals established by the defendant. Chicago, Burlington, & Quincy Railroad v. Yorty, 158 Ill. 321. We do not understand the defendant to contend that an undue prolongation of the whistling on the part of the engineer would not be negligence, or that it would not be liable to the plaintiff for the damages caused thereby. Exceptions overruled.