On the question whether the noise of escaping steam from the defendants' locomotive was likely to frighten horses, the evidence that other horses passing along the highway had been frightened by it was admissible. Darling v. Westmoreland, 52 N.H. 401. So, also, was the evidence that the superintendent of the railroad had been notified some two years before the accident that the public travel was endangered by the management of the defendants' engine at that place. This evidence tended to show that the defendants knew that other horses had been frightened by their locomotives, as managed by their servants at that place. The defendants' exceptions to the evidence must be overruled.
The defendants' request for instructions, that they were not responsible for the consequences of the use of their locomotive in their ordinary business upon their own land, was properly refused. This request assumed that the defendants had the right to use their locomotives on their own land, in their ordinary business, as they pleased, without regard to the rights or safety of travellers in the highway; and, if given, would have excluded from the consideration of the jury the question of care, or negligence, in the management of such locomotives. In Knight v. Goodyear Rubber Co., 38 Conn. 438, where the plaintiff's horse was frightened by the blowing of a steam whistle on the defendants' factory, situated near the highway, the defendants were held liable, although it appeared that the whistle was blown in the ordinary way, and for the ordinary purpose of designating the hour of noon.
We see no error in the instructions to the jury. Although they were not told in express terms that the statute relating to injuries by steam did not apply to this case, the charge was such that they must have understood that it did not apply. The damages accruing to person or property by fire or steam, for which the proprietors of a rail road are made liable by statute, are such damages as may be insured against, — damages caused directly by fire or steam in the burning or destruction of property; and in cases under the statute no question of negligence arises, railroads being held liable as insurers in such cases. Rowell v. Railroad, 57 N.H. 132.
In this case, the jury were instructed that the liability of the defendants depended upon whether they had exercised proper care and prudence in the management of their locomotive at the time of the *Page 399 accident; and that whether the defendants had exercised ordinary care, prudence, and diligence, under the circumstances disclosed in this case, was a question of fact for the jury to determine upon the evidence. Under these instructions, the jury must have understood that the material question for them to determine was the question of negligence. Jurors are presumed to be men of at least ordinary capacity and common intelligence, and we think the instructions upon this point could not have been misunderstood. It is not a sufficient objection that the charge was not given in the particular words of the request. Cooper v. Railway,49 N.H. 209; Wendell v. Moulton, 26 N.H. 41; March v. Railroad,19 N.H. 372; Clark v. Wood, 34 N.H. 447; Tucker v. Peaslee, 36 N.H. 167; Walcott v. Keith, 22 N.H. 196.
Judgment on the verdict.
BINGHAM, J., did not sit.