Judgment affirmed.
Dean & Smith, for plaintiffs. Dorsey, Brewster & Howell, Wright & Harris and McCutchen & Shumate, for defendant.Action for damages, the declaration alleging that while the plaintiffs’ horse (a gentle horse, not afraid of trains) was being driven along a road and at a public crossing of the railroad, the driver came in contact with the defendant’s train; and that the employees of defendant failed to blow the whistle or check the train as the statute required at public crossings, and thereby caused a collision between the horse and buggy and the train. To the grant of a nonsuit the plaintiffs excepted. The evidence showed that the horse was being driven, about nine o’clock at night, along a public road running for some distance side by side with, and 12 feet from, the railroad. It was about 125 yards from where the accident occurred to where the road crossed the railroad. The driver was going in the same direction as the train ; it approached from behind. It was running rapidly and not making much noise. There was no blowing of any whistle nor ringing of any bell, and no checking of speed. As it approached, the headlight flashed out and scared the horse, which jumped up and hacked into the ditch on the roadside and then into the railroad cut. The buggy and harness were destroyed, and the horse killed.