*233 Judgment reversed.
There was a verdict for the defendant. Exception was taken to the following charges : “ The authority to operate a railroad includes the right to make all the noises incident to the moving and working of its engines, as in the escape of steam and rattling of cars, and also to give the usual and proper signals of its approach to way-stations on its line by blowing the whistle, if this was a reasonable and necessary thing to be done, and this although such way-station may happen to be in an incorporated town or village.” The errors alleged as to this charge are: (1) It. justifies whistling in the corporate limits of a town to signal the approach to a station, if such whistling is a reasonable and necessary thing to be done, the question not being whether such whistling, as a general thing, was reasonable and necessary, but whether it was reasonable in this particular case, in view of plaintiff’s proximity to the track, the thickly settled locality, etc. (2) In charging that defendant had the right to signal its approach to a station by whistling in the limits of a town, and leaving it to the jury to say whether such custom was reasonable and necessary, plaintiff insisting that no such general right for such purpose of signalling exists, and the exercise of such light could not depend on whether the custom of whistling was reasonable and necessary. (3) It was error to charge on any general right defendant had to whistle in a town, the question being on the right to whistle in this particular case. Also : “If you believe tbat tbe defendant was negligent in blowing its whistle in an unusual and unnecessary manner, still if the plaintiff, in the exercise of ordinary care on his own part, after this negligence had begun to operate and its peril to impend over him, could have avoided the consequences to himself of that negligence, he cannot recover.” This was alleged to be error because there was no evidence upon which to predicate it, there being nothing in the case to show want of ordinary care on plaintiff’s part, defendant’s only defence being that it was guilty of no negligence. Also : “If you believe from the evidence that the injury to the plaintiff' was caused by the blowing of the whistle of the locomotive, and you further believe that the whistle was not carelessly or recklessly blown, but for the purpose of signalling its approach to a way-station, and that this was done in the usual manner, and was in your opinion reasonable and necessary in view of the actual occasion and situation, the plaintiff cannot recover.” Error, because not warranted by the evidence; because, no matter if the custom was to signal approach to way-stations by the whistle and this was the usual manner, it could not be reasonable and necessary if likely to produce injury to a traveller on a highway. Whether such whistling was generally necessary and reasonable has nothing to with the case. Also : “ If you believe from the evidence that the defendant’s servants in charge of the engine were not negligent in blowing the whistle, in the sense charged, but that the sole cause and the real cause of the plaintiff’s injury was the wild, vicious and refractory disposition of the horse he drove, and the plaintiff’s inability to control him, or the plaintiff’s want of care or skill in the management of him, the plaintiff cannot recover.” Error, because there was no evidence on which to base such charge. Further exception was taken to the refusal of tlie court to give in charge tbe following: “A rule or custom of a railroad requiring its employees to blow at a certain point, is, of itself, no justification for whistling there if, under the circumstances of the case, the whistling would probably produce injury to some person on the adjacent road. Rules emanate from the defendant and may in themselves be negligent, “You are to determine as a question of negligence or diligence whether the whistle should have been blown or not. If the engineer knew, or could have known by ordinary diligence, that his blowdng or his continuing blowing would frighten the plaintiff’s animal and cause him injury, the engineer should have abstained from such further whistling, and the defendant is liable for any injury occasioned by such prolonged whistling.” Arnold & Arnold, for plaintiff’. Calhoun, King & Spalding and A. Campbell King, for defendant.