(dissenting.) We dissent from the opinion of the majority of the court in this case, and think the judgment of the court below should be reversed, and, among others, for the following reasons :
The particular charge of negligence made by the plaintiff against the defendant’s servants in charge of the locomotive, from which the injury is alleged to have keen received ky plaintiff, is that, ky unnecessarily and negligently sounding the engine whistle, and permitting steam to escape from the cylinder cocks of the engine, they frightened plaintiff’s mules, causing them to run away, and kecome unmanageakle, and continued to add to their fright, so that they crossed the railroad track, and the rear wheel of the plaintiff’s wagon was struck by the engine, throwing plaintiff back in his wagon, and injuring him so as to produce hernia.
Only two of plaintiff’s witnesses testify as to the escaping of steam — the plaintiff and McGahey, at the time head brakeman on the train — and these also testify as to the blowing of the whistle. The inference to be drawn from plaintiff’s testimony on the subject is that the whistle was sounded, and the steam permitted to escape as aforesaid, almost continuously from a time soon after the engine had whistled for the crossing, at the whistling post, until the crossing was reached, and the collision took place. The testimony of McGahey was to the effect that the whistle was not sounded after the whistling post was passed until the engine had nearly reached the crossing, and that for the brakes (meaning as a signal to put on the brakes), and that the steam was let off about the same time, and that that was necessary in running the engine. Not a word of testimony was introduced to show that the letting off of the steam was an unnecessary or negligent act, but, on the contrary, McGahey testifies that it was a necessary thing to do in the management of-the locomotive. Nor is the case any better as to the sounding of the whistle; for McGahey says that was done to signal the brakemen to put on the brakes, and the signal was immediately responded to by himself and the others. The necessary meaning of this is that the putting on the brakes was for the purpose of decreasing its speed or stopping the train — a thing the engineer was in duty bound to do, in case of threatened danger, at the crossing. A lawful object must, in the absence of proof to the contrary, be attributable to the engineer, whether the sounding of the whistle and escaping of steam occurred soon after passing the whistling post, and continued,- or whether it occurred just before the crossing was reached by the engine. There is absolutely nothing inconsistent between either of these acts and the duty of the trainmen, and yet, assuming that either or both of these acts were unnecessary and negligent, or, rather, that there was proof of either fact, when there was absolutely none, the court gave its second instruction as follows, to-wit: “2. For an injury resulting from the frightening of a team of horses by an engine and train of cars, while the same were being properly operated, no damages are recoverable, but where an engineer in charge of a locomotive, when about to pass a team of horses in full view, unnecessarily and negligently blows off steam, and by so doing frightens the team, and causes it to run away, the company is responsible for the consequences, but in all such cases it must appear that the injury was the direct result of negligence on the part of the employees of the company.”
And the third instruction, which is substantially the same as the second.
Upon what principle the servants of the defendant could be said to be guilty of negligence, without some proof that the alleged acts were in fact negligently done— at least were not necessarily done — is incomprehensible to us ; and what was there in the evidence to justify such instruction, we are unable to see. The sounding of the whistle at the whistling post, for the crossing, was a statutory requirement, and nothing whatever appears in the testimony, that we can see, which would excuse a non-compliance with the requirement.
The following decisions fully show the duty and immunity of trainmen, in respect to the management of the engines and trains, as regards the rights of travelers on neighboring highways, to-wit: Morgan v. Norfolk S. R. Co. 98 N. C. 247; Omaha & R. V. Ry. Co. v. Clarke, 57 N. W. 545.
At this point, the doctrine that it is the duty of persons in charge of a locomotive engine to keep a lookout for travellers on a highway, located relatively to the railway as the one referred to in this case, announced in the sixth and seventh instructions given by the court below, has the effect of giving quite a radical change in the conclusion otherwise necessarily to be found in considering the subject of special acts leading to the injury, which we have just disposed of.
It is impossible to discover from the testimony at. what particular point plaintiff was when his team first took fright. He may have been 55 yards or 155 yards, from the crossing, but between these points the testimony' ranges. At this time, however, he testifies that, the train was about 50 yards north of the station, (which we infer from the testimony of other witnesses, was 500 or 600 yards from the crossing), and, at the rate qf speed at which the train was running, not quite one minute of time elapsed between this point and the crossing of the highway by the engine, and the collision. It. is in proof that over this space the view between the plaintiff’s wagon and the engine was unobstructed. The effect of the instruction then was to leave to the jury to determine whether or not the engineer, whose positive duty it was to keep a lookout for persons in the situation of the plaintiff at the time, at least as far back from the crossing as 500 or 600 yards, was negligent in not seeing plaintiff, and in not beginning his efforts then to decrease the speed and stop the train. The verdict in this case can have no other foundation than the theory of these instructions made applicable to the testimony. This brings us directly to a discussion of that theory.
The primary duty of the persons in charge of a locomotive is to keep a lookout on and along the railroad track, for the care and custody, the welfare and safety, of persons on the train is entrusted directly to them, and in most instances they are required to exercise the highest degree of care and watchfulness. The law cannot afford, nor can the courts afford, to release these trainmen from this — the strictest and highest of all duties— not even to insure the life of others in a different situation from that of passengers on the train. As for travellers on the highway, they become the objects of the special care of the engineer only when on ground on which they both have equal rights and privileges — the crossing — when reciprocal duties are imposed upon the engineer and the traveler, with respect to each other, and those committed to their care. To look out and keep an eye on the track is also to keep an eye on the crossing, when that comes into view. The natural range of the vision extends over a space wider than the track. Within this range objects are seen by keeping the lookout, and these objects are those referred to as being near or approaching the crossing. The duty to observe these objects off of the track and near to it cannot and must not interfere with the engineer’s constant observance on the railroad track, for that is his primary duty.
From this it will be inferred that the argument is that a look out on the neighboring and parallel highway, at a point indefinitely distant from the crossing, is not among the things required of the engineer. If it is shown that he has observed the traveller anywhere and in danger, he should do all in his power, as a reasonable person, to prevent injury. But the point is that he is not required to see and observe the condition of the traveller, when that seeing and observing will take his eye from the point he is required to look to continuously. This idea is illustrated in the policy of our legislation. Thus, until recently, the common law rule prevailed in this State as to the duty and non-duty of trainmen with reference to trespassers on the track. The common law rule was that trainmen owed no duty to trespassers except after observing them, and then to do all they could to prevent injury to them. There is no common law duty to keep a lookout for such. In- 1893 the legislature, by an act, imposed the additional duty of keeping a lookout for such persons, but expressly confined the lookout to the railway track. No legislature has probably ever gone so far as to compel trainmen to lose sight of the track for a moment, as would be the case if the doctrine of the majority of the court shall prevail.
In support of the opposite theory to the one here contended for, the case of Lamb v. Old Colony Railroad, 140 Mass. 79, is cited. A careful reading of the opinion in that case will, we think, give it exactly the opposite effect to that intended in the citation, as will appear from the following quotation from it, viz.: “The defendant had a right to run its trains on its railroad adjoining the highway, and was not responsible to travellers on the highway for the consequences of noise, vibration, or smoke caused by the prudent running of its trains. The smoke which frightened the plaintiff’s horse was occasioned by ‘firing up’ the engine — that is, mending the fire, or adding coal to it — the ordinary effect of which is to occasion the emission, for a short time, of very black, dense smoke from the smoke stack. The plaintiff contended that there was evidence that it was practicable to run the train for the whole distance where the railroad joined the highway without firing up ; and that the act of firing up on the stretch of railroad adjoining the highway was unnecessary for the ordinary running of trains, and exposed travellers to an unnecessary danger, and was therefore negligent, or might be found to be so by a jury. Without considering the proposition of law involved, we think the court below might properly have ruled that there was no evidence to sustain the proposition of fact.” And, further on, the court say in that case: “There was no evidence that the defendant’s servants knew that the plaintiff was on the highway, but there was evidence that they would have seen him if they had been on the lookout. for travellers on that part of the highway. If it was their duty to be on the watch for persons on the highway, and to avoid firing up when near them, there was evidence of negligence. The act of firing up, like that of sounding the whistle or blowing off steam, is one necessarily incident to the running of trains, not continuous, but occasional, and so to some extent capable of being1 regulated in its use; and it may be negligent to do it in places where there are likely to be persons who may be endangered by it, and when its use can be avoided, as at stations and highway crossings and in short portions of the railroad near a highway.”
In other words when these acts can or may be dispensed with for the time being, and they might have a tendency to produce or aggravate danger, they should be dispensed with; but does this show that, when the highest duty of the engineer is to check or stop his train, and sounding the whistle and letting off steam are the only known instrumentalities of accomplishing such an act, as in the case at bar, such sounding of the whistle or blowing off steam can or should be avoided. The very statement is a refutation of the truth of such a proposition. The court in concluding its argument in that case says : “Being under no oblig-ation to watch for travellers on the highway, the defendant could not have been guilty of negligence in not seeing and avoiding the plaintiff.”
The doctrine announced in Favor v. B. & L. R. Co., 114 Mass. 350, is that a railroad company, in approaching crossings with its trains, are to take other reasonable precautions than those required by statute. There is no evidence in this case of the neglect of any reasonable precaution whatever, unless it be involved in the lookout at an indefinite distance from the crossing.
We do not think that on careful reading the case of Norton v. Eastern R. Co. 113 Mass. 366, cited in the opinion, militates against our theory of this case, but rather sustains it; and so in the case of Petersburg R. Co. v. Hite, 81 Va. 767, the question being whether the noise made by the train was needlessly or negligently made, as it announces no doctrine that is at all controverted, furnishes no authority for the case at bar, for it determines nothing that is not already admitted by every one.
We are unable to find a well considered case, wherein the particular question is involved, where, without statutory provisions, the persons running a railroad train are burdened with the absolute duty of keeping a lookout for travellers on the highway, except such as are crossing, or about to cross, or are nearly approaching the crossing of the railway and the highway; and where this is on grade; and this we think we have sufficiently explained above.
Both the engineer and fireman in charge of the running of the train in this case are dead, and were dead before the trial. They are not here to tell their story. Previous to the-time the mules first became frightened, according to the plaintiff’s testimony, that is, when the train.was fifty yards north of the station, there could of course be no call upon them to look out, for, if they had, nothing would'have appeared to justify a change in the running of the train. It is uncertain at what point the signal for brakes was given, or the steam let off. These were after the signal for the crossing had been given, as the law requires. The sounding of the signal for brakes and the letting off of steam could have had but one object — a decrease in the speed of the train, and perhaps its stoppage, if possible. This was not only a lawful object, but was of the highest necessity if the trainmen had observed the condition of plaintiff, and were endeavoring to stop the train to avoid injury to him. In the absence of all evidence to the contrary, this motive must be attributed to them. But the instruction of the court imposed unusual, and, to our minds, unauthorized burden upon them.
Wood, J., concurred in the dissenting opinion.