Fürsman, J.:
The plaintiff was in his wagon ninety-five feet from a railroad crossing waiting for a friend. His horse was standing. A train of the defendant approached the crossing without ringing a bell, or blowing a whistle, or giving any other warning of its approach than the usual noise which always accompanies a moving train of cars. The “ rattling ” of the approaching train frightened the horse and it ran away over" the crossing and the plaintiff was struck and injured. This is the whole case of the plaintiff. Did the defendant under these circumstances owe any duty to the plaintiff ? I think not. The purpose and object of blowing a whistle or ringing a bell when a train approaches a crossing is to warn persons who are about to cross of the danger of doing so. The company is not required to inform persons who are as far distant as ninety-five feet from the crossing seated in a wagon, the horse attached to which is standing
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quietly in a place of absolute safety, that a train is about to run over the crossing, lest iipon its failure to do so the horse may become frightened by the noise of the train and run away. If such warning must be given under such circumstances then it must be given to all persons however distant, and whether upon a highway which crosses the railroad or not, provided only they are near enough to hear the bell or whistle, and if in such case it is omitted and a horse is frightened by the noise of the train and runs away and the driver is injured the company is liable. It is not important to this question that the horse ran towards the crossing and the plaintiff was struck by the train. The theory upon which the plaintiff must recover, if at all, is that the failure to ring the bell or blow the whistle induced him to remain where he was until his horse became frightened and ran away. The right of recovery would be equally perfect if the horse had been standing with his head from instead of towards the train and had been frightened by it and ran. The signals are a warning not. to attempt the crossing, and are not for the purpose of enabling a party whose horse is standing still to adopt some measure to the end that he may not be scared, or, being scared, may not run away. The action is predicated upon the supposition that the plaintiff would have had time to turn around, or drive under a convenient shed, or do something else before the train came into view if the defendant had not omitted to give warning of its approach. But those in charge of the engine were not bound to signal him to do' any of these things. They were bound to signal persons approaching-the crossing of the danger of attempting to pass over it, but the plaintiff was not approaching the crossing when his horse became frightened, nor even intending at that time to immediately cross over it. He was simply waiting for his friend, and had no intention -to proceed until his friend arrived. Moreover, there is not a particle of evidence that his conduct was in the smallest degree influenced by the omission of the warning signals. To charge a party with responsibility for an injury resulting from negligence it must be made to appear that such negligence was the immediate cause of the injury. There is not a word óf evidence tending to show that the plaintiff depended upon the omitted signals, or would have done anything he did not do if they had been given. That he was listening for the
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signals does not tend to show that if he had heard them he would not have remained precisely where he was when his horse took fright. It must, of course, be conceded that if the whistle had been blown and the bell rung the whole duty of the defendant ' would have been discharged. Inasmuch as the omission to give this warning had no relation whatever to the conduct of the plaintiff in the management of his horse, it cannot justly be said that this neglect caused or even contributed to the accident by which the plaintiff was injured.- The judgment must be affirmed.
All concurred, except Smith, J., dissenting in an opinion; Pabkeb, . P. J., and Chase, J., concurred in result.