delivered the opinion of the court, February 17th 1879.
It. is not claimed, in this case, that the deceased was chargeable with contributory negligence; but, it is contended that there was not sufficient evidence to justify the court in submitting to the jury the question of the company’s negligence.
The learned judge affirmed, without qualification, the defendant’s first, third and fourth points, and thereby instructed the jury, in substance, that the company, being authorized to use steam-engines' on its-road,' was “not responsible for accidents arising from horses being frightened by the noises properly incident to the employment *411of such engines, or by the sight of the enginesthat the sounding of a whistle, in order to amount to negligence, must be of an extraordinary character, and although the horse may have been frightened by the blowing of the whistle, there could be no recovery,, unless the jury found from the evidence that;it was of an extraordinary and unnecessary character; nor would the company be liable if the engineer “blew the whistle for the purpose only, and with the intent of frightening” the horse. These instructions are not complained of, and their effect manifestly was to limit the right of recovery, so far as the whistle may have been instrumental in causing the accident, to an extraordinary and unnecessary use thereof. And, in affirming defendant’s second point, he charged that no negligence could be imputed to the company from the exercise of its right to use and run its engine in an ordinary way, and with due and reasonable care; but, at the same time said that the jury were not precluded “from determining whether the company was negligent in leaving the gate open and fastened back, and without a watchman.” This latter qualification, and the refusal to affirm the defendant’s fifth to eighth points, both inclusive, have been assigned for error.
The jury were thus permitted to inquire whether the whistle, if blown at all, was of an extraordinary and unnecessary character, and whether, under the circumstances, the company was negligent in leaving the gate open and fastened back, without a watchman.The consideration of the jury was, in effect, restricted to these inquiries, and the only question is, whether there was sufficient evidence to justify their submission.
The testimony was conflicting as to whether the whistle was blown at all or not. One of plaintiff’s witnesses, describing the occurrence, says, “just then the locomotive came in view from behind the corner of the factory. When those on board saw us they blew their whistle twice or three times. I don’t know whether the engineer seeing us -caused him to blow, but he did so. It was a whistle sharp and shrill, a good whistle.” Another,says, the “engineer whistled after he came by the building, to scare the horse or something. I suppose he whistled to frighten the horse. It was a continuous locomotive whistle — nothing peculiar about this. It seemed like three jerks, as if pulled open very sudden.” One of defendant’s witnesses testifies “ there was no occasion to blow the whistle. I heard no whistle. At the time the engine passed, the horse was thirty feet from the track, on the west side of Ninth street.” The engineer in charge of the locomotive says, “I never blew a whistle unless something was on the track. I did not blow the whistle, to my knowledge. There was nothing to require me to blow a whistle. I did not blow to frighten the horse ; did not blow at all, to my knowledge.” Other testimony of the same kind was given on both sides; and the defendant introduced testimony *412to show that the bell was rung and that the horse shied at some object in the street.
It is quite obvious that the testimony thus introduced was proper for the consideration of the jury. It was for them to say whether the whistle was1 blown or not; and if it was, whether, under the circumstances, it was necessary or wholly unnecessary, and sounded in an extraordinary-manner without reasonable care, and whether the accident was caused thereby. The company’s liability depended on the fact whether- the accident resulted from want of proper care •on the part of its employees. Negligence is the absence of care ■according1 to the circumstances, and is always a question for the jury when,, as in this- case, there is reasonable-doubt as to the facts, or as to the inferences to be drawn from them. Wanton and unnecessary sounding of-a locomotive whistle, under certain circumstances, has been held to be negligence: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 239; Railroad Co. v. Stinger, 28 Id. 219. In the former case the engineer'blew his whistle under a bridge while Barnett was passing over, in consequence of which his horses frightened, ran off and injured him. In delivering the opinion of the court, Mr. Justice Williams characterized this as “an act of gross negligence, .and a sufficiently proximate cause of the injury to render the company liable therefor.” If the jury found that the whistle was blown, as claimed by the plaintiff, and that, under the circumstances, it was an unnecessary and • extraordinary act, what difference is there, in principle, between that case and this ? There may be some difference in degree, but not in kind. There was no error in submitting this question to the jury.
■ Were'the facts in relation to the gate at the crossing a proper subject of inquiry'for the jury on the question of the company’s negligence ? ’' -
■It is not claimed'that, irrespective • of circumstances, it is a common-law duty of a railroad company to station flagmen or-maintain gates at public grade crossings. A road may be so constructed, however, by making-short curves or deep cuts at a public thoroughfare as to make it more than ordinarily dangerous, and it may thus become the duty of-the company to employ a flagman or adopt other adequate means of-warning-and protection. Where there is extensive travel on-a streét-or other highway crossing a railroad track, the company,-as well as the public, is bound to exercise a degree of care -and diligence commensurate with the risk of accident. • It is the duty of the company,-on-the one-hand, to'give timely and sufficient notice-of-'the approach of trains at such crossings, while ón the-other it is the imperative-duty of the traveller to stop, look and listen -for'approaching trains 'before attempting to pass -a railroad crossing: While 'the law does not point out any .particular mode or manner,in which notice of approaching trains shall be *413given, it does require that some suitable and adequate means, adapted to the circumstances, shall be adopted and applied.
The road of the plaintiff in error is located on Ninth street and crosses Columbia avenue at right angles. From the point of intersection westerly to Tenth street the grade is considerably ascending. At the northwesterly corner of the crossing a large factory obstructs the view of the railroad on that side to a person approaching from the west until he reaches the house line, about twenty-five feet from the track. In 1875, the gate in question was put up jointly by the railroad company and the Union Passenger Railway Company. According to the testimony of Mr. Kemble, it was so constructed as to swing across Ninth street or across Columbia avenue, so “ that when opened on the avenue it was shut on Ninth street — to warn the public and engineer at the same time; it could be swung up along ■ the curb of Columbia avenue.” The gatekeeper was on duty from 6 o’clock, A. M., until 7 o’clock, P. M., at which time the gate was swung back along the southerly curb of, Columbia avenue, and there locked for the night. A few minutes after the gate had been thus locked back and the keeper had left for the night, the deceased and his companions drove down the avenue towards the crossing and stopped at Tenth street for the purpose of ascertaining whether a train was approaching. The intervening houses so obstructed their view that they could not see the railroad on the north side of the crossing. Hearing no bell or-other warning, and seeing the gate open, they supposed there was no train approaching, and drove slowly down to the crossing. When within about thirty feet of it, the engine suddenly made its appearance, without previous warning, as was alleged; the whistle was. blown; the horse became frightened and reared up on the gate; the deceased was violently thrown out and sustained the injuries which caused his death. The testimony tended to prove these facts, and it was claimed that they afforded evidence of negligence, proper to be submitted to the jury.
It is evident that the risk of accident at this point was so great that it was necessary to adopt some precautionary measure. A flagman had been previously stationed there, and then the gate was adopted as a better substitute. The ground of complaint is that the keeper was withdrawn at 7 o’clock and the gate left in such a position as to mislead the travelling public — invite .them to cross and lure them into danger, and that the deceased was thus misled, and injured. If this be so, it would seem that there was a want of that care which, under the circumstances, should have been exercised. We think the learned judge committed no error in submitting the testimony to the jury. It -was a question for them whether, in view of all the circumstances, as they found them to exist, the company was not chargeable with negligence in this regard.
There is nothing in any of the other assignments of error that appears to call for further notice. Judgment affirmed.
Siiarswood, C. J., and Paxson, J,, dissented.