ON REHEARING.
Day, J.A petition for a rehearing was filed in the foregoing case, in which the opinion is assailed with much earnestness and vigor. Some of the positions taken in the. petition for a rehearing seem to merit and require notice in a supplemental opinion.
I. It is said that the doctrine of the 10th instruction con*174sidered in the foregoing opinion is “this and no more: that it was not our duty to -have a flagman to give warning of other than trains approaching or about to approach a crossing; and that the duty to have one then, even, resulted from the common law, and not from any statutory obligation.” It is claimed that this is the law, and that no one does, or can, deny it. It is very evident, however, from the branch of the opinion devoted to this instruction,- that this is not the question with which it deals. The instruction goes further than as set out above, and directs that at common law it is “ only required that defendant shall have flagmen at crossings * * * to warn persons about to cross the track of the approach of engines and cars thereto, and to prevent collision by persons on the highway with such moving engines and cars? It is the portion of this instruction which limits the duties of flagmen to the preventing of collisions by persons on the highway with moving engines and cars that we considered and condemned in the foregoing opinion. Hence we cited a case in which the injured person approached no nearer than thirty-six feet to the defendant’s track, when he was injured, not by collision, but by the kick of his horse, frightened by a moving train, and in which it was held that the duty of a flagman extends to the giving of warning which would have enabled him to protect himself from such injury.
II. It is claimed that in none of the cases cited in the opinion were the engines and trains receding from the crossing, and that they are, therefore, all inapplicable. It is further claimed that no case can be found where a recovery has been had for any injury sustained whilst the engine and train were receding. The point determined in the cases cited, and in the foregoing opinion, is that it may be negligence for the company to make noises, calculated to frighten the animals of travelers, without giving any warning or notice thereof, and that for any injury resulting the company may be held liable, even when no actual collision occurs.
*175It is held that it must be submitted to the jury to determine, as a question of fact, whether, under the circumstances, the making of certain noises, without notice or warning, constitutes negligence. The particular act complained of in this case was the opening of the drip cocks and valves on the engine, and allowing the steam and water to escape with a loud noise. Now if this act may constitute negligence in a train approaching a crossing, there is no principle of law upon which-it can be held that it may not constitute negligence in a train receding from the crossing, or standing ■ still. Of course, as a matter of fact, the company may be liable for the making of noises under some circumstances, and not liable for the making of them under other circumstances. But, as matter of law, liability for noises made without notice cannot be limited to cases in which the trains are approaching a crossing. We have examined the entire petition for rehearing with much care, and we see no reason for receding from any of the views expressed in the foregoing opinion. The petition for rehearing is
Overruled.