Petersburg R. R. v. Hite

Hinton, J., delivered the opinion of the court. This is an action on the case for negligence. The plaintiff obtained a verdict and judgment in the court below for the sum of $900; whereupon the defendant applied for and obtained a [771] writ of error and supersedes from one of the judges of this court. The case is before us upon exceptions to the instructions given for the plaintiff; the refusal of the court to give instructions three and nine, as asked by the defendant; to the giving of the modified instruction which the court gave in lieu of said third instruction; and to the refusal of the court to grant a new trial. As to the instructions given for the plaintiff, it may be said of them, taken as a whole, that they seem to correctly state the law and are in all other respects unexceptionable. And as to the refusal of the court to give the third and ninth instructions, as asked by the defendants, it need only be said that they were intended to present to the jury the question of contributory negligence as it was supposed to affect the plaintiff’s right to recover in this action ; but, as there is no evidence which we have been enabled to discover in the record tending to make out a case of contributory negligence on the part of the plaintiff, neither of these instructions should have been given. For the same reason, it was unnecessary for the court to have given the modified instruction which it gave in lieu of the third instruction asked for by the defendant; but as this is an error of which the defendant in error does not and the plaintiff in error cannot complain, it will not be further noticed. We come then to the only important question in the case, which is, whether there can be any recovery against a railroad company, in a case like the present, where the injury occasioned by the plaintiff is produced by the blowing off of steam from the cylinder cocks. Undoubtedly railroad companies have the right to run engines and cars over their own roads and in their yards, and, as a consequence, they have the right to make the usual and reasonable noises necessarily incident to a running train ; and for the making of such noises, therefore, when they [772] are neither negligently nor unnecessarily made, no cause of action will arise, although animals may be frightened thereby and injury ensue. On the other hand, it has been often held, and it is. undoubtedly true, that if such noises are made needlessly or negligently and horses lawfully in the vicinity are caused to run off and injury is inflicted, that the company will be liable. 1 Whart. on Negligence, secs. 835 and 836; Pierce on Railroads, 348. The inquiry in every case, therefore, must he, whether the company was exercising its rights in this respect in a lawful and reasonable manner, with a due regard to the rights of others who may be lawfully travelling in the vicinity of the railroad track, for it must be obvious that what-may be due care in a thinly-settled neighborhood or near an unfrequented road, would be sheer negligence in a thickly-settled town and on a street along which horses were being momentarily driven. Now, in the present case, we think it appears that the engine, although within the company’s yard, was not managed with a due regard to the rights of the plaintiff, who was lawfully, and in the exercise of proper care, crossing its track. It does not appear that the engine might not have stopped at a much greater distance from the street and where the steam might have been blown off without the danger of frightening horses lawfully crossing its track. Manchester, &c., R. Co. v. Fullerton, 14 C. B. (N. S.) 54; Penn. R. R. Co. v. Horst, No. 5, Vol. 2, Eastern Reporter, 398; Shear & Redf., sec. 486. For these reasons, I am of opinion to affirm the judgment of the hustings court of the city of Petersburg. Fauntleroy, J., dissented. ’Judgment aeeirmed.