The instructions requested by the defendants were rightfully refused. The right of a railroad corporation to use and occupy a part of the public highway, for the purpose of loading and unloading freight, (if any such right can be said to exist,) must be subordinate to the lawful use of the highway for general purposes of travel. The rule contended for by the defendants would allow them to use machinery and implements within the limits of a highway, such as might naturally frighten horses and in that way endanger travellers who were in the exercise of due care and diligence. People v. Cunningham, 1 Denio, 524. Rex v. Jones, 3 Camp. 230. The instructions given by the court were correct and appropriate, and met all the exigencies of the case. It was not necessarily a wrongful act for the defendants to load their cars within the located limits of the highway; but “ they were not entitled to place or maintain structures in it, or extending into it, the effect of which would naturally be to alarm the animals used thereon,” and they are to be held responsible if any injury should result from their doing so, to persons using due care.
Exceptions overruled.