delivered the opinion of the court, January 5th 1880.
The first assignment of error is not sustained. The evidence offered to show the value of the harness and buggy was properly rejected. The plaintiff had already testified that they belonged to W. H. Reed, who had loaned them to him. It was not error therefore for the learned judge to say, that Reed was the proper person to sue for the alleged injury to said articles. A recovery by the plaintiff would have been no bar to a suit by the owner.
The second and third assignments present a graver question. The court below nonsuited the' plaintiff upon the ground that he did not stop and look and listen before attempting to cross the *338track. The rule invoked is a valuable one, and sustained by several well considered cases, among which may be mentioned, Railroad Company v. Heileman, 13 Wright 60 ; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and Pennsylvania Railroad Co. v. Beale, 23 Id. 504. We do not propose to depart from this principle nor to weaken its force. We are unable to see its applicability to this case, however. The injury, as developed by the plaintiff’s testimony, was not the result of a failure to observe the rule. Had he stopped, looked and listened, it is not probable he would have seen or heard the train, for the reason, that i,t was too far off to have been patent to any of the senses. The trouble, was, that the horse which plaintiff was driving, caught his foot in the space between the rail and the plank at the crossing, and fell down on the track. The plaintiff got out of the buggy and endeavored to get his horse upon its feet again. But this was not an easy task, as one of its feet was fast. After working unsuccessfully in this manner for about two minutes, he told his wife to get out of the buggy. She did so, and shortly thereafter heard the cars coming, upon which she ran up the road to meet them, signaling them at the same time to stop. The warning came too late, and the train passed over one leg of the horse, and damaged the harness and buggy to some extent. There was evidence that the track was out of order at the point where the accident occurred; that the flange way was too wide — one witness says four inches and five-eighths — and that other horses had been caught in the same way before. The true question in the case therefore was, whether the company were guilty of negligence in allowing the track at the crossing' to be in an insecure condition, and this question should have been submitted to the jury.
Judgment reversed, and a venire facias de novo awarded.