The plaintiff has the right in common with all other travelers to use the highway at all times for the purposes for which such ways are constructed. The defendant corporation alsó by force of their charter, had a right to lay their track and run their trains over and across the highway at the place where it is constructed. But they cannot both use the crossing at the same time. On the contrary, each, on approaching it, is bound to use his privilege with such reasonable precaution, prudence and actual diligence as may enable him to use it with safety to the other, approaching in like exercise of care. Webb v. Port. & K. R. R. Co., 57 Maine, 117. On account of the nature of the motive power used by railroads, and the difficulties attending its management, and the noises incident thereto, the statute has prescribed means particularly adapted to give notice of the approach of a train, the object being to warn all persons of such approach in season to enable them to stop at a safe distance, and thus avoid the risk not only of collision but also of alarm to horses. Hill v. Port. & Roch. R. R. Co., 55 Maine, 438, 441. Norton v. Eastern R. R. Co., 113 Mass. 362. Prescott v. Eastern R. R. Co., 113 Mass. 370. Pollock v. Eastern R. R. Co., 124 Mass. 158.
*211But, having a chartered right to run their trains, the defendant corporation “ has necessarily the right to make all the reasonable and usual noises incident thereto, whether occasioned by the escape of steam, the rattling of cars, or in any other manner.” Norton v. Eastern R. R. Co., supra.
Applying these principles to the case at bar, and it is evident that the verdict is so manifestly against the weight of evidence, on the point of want of care on the part of the plaintiff, that it ought to be set aside.
Taking the plaintiff’s own testimony, several times repeated, and it appears that he had a store standing upon the other side of the track, and within twelve feet of it, where he had frequently stopped with this horse when trains were passing; that he knew the custom of freight trains at that station; that he “ had heard all kinds of noises before ” caused by such trains; that, seeing the train at the crossing, still he drove to the “ planking between the rails; ” that he saw the car moving down ; backed his horse “ some twelve feet,” where “ he stopped a minute or more ; ” when, by the “ rattling of the cars,” the horse became frightened, turned the wagon, and tipped him out.
The witnesses for the plaintiff testify to nothing materially different. They evidently did not see what the plaintiff so frequently details as first taking place.
The horse was frightened at the ordinary noises of the train. If the plaintiff had exercised ordinary care, and stopped at a reasonably safe distance from the train which he had seen when within a quarter of a mile of the crossing, the injury would not have occurred. Grows v. M. C. R. R. Co., 67 Maine, 100. Cordell v. N. Y. C. & H. R. R. Co., 19 A. L. F. 134.
The cases cited from the Massachusetts decisions are different from the case at bar. The crossings there were flag crossings, and the approach of trains not visible at a distance.
Motion sustained.
Verdict set aside.
Appleton, C. J., Walton, Barrows and Libbey, JJ., concurred.