On Motion for Rehearing.
Further consideration of this case on appellant’s motion for a rehearing has led us to the conclusion that we erred in affirming the judgment of the court below. We are now of the opinion that appellant’s contention that the court’s charge made the basis of its first assignment of error was erroneous, in that it authorized the jury to find that the act of the defendant in blocking the street crossing with the standing train on the main track of its road was an act of negligence proximately resulting in plaintiff’s injury should be sustained. In disposing of the question in the original opinion, we held that it was shown that the stopping and holding of defendant’s train across the street upon which the plaintiff was traveling was a concurring proximate cause of the accident and its consequences to the plaintiff.
Appellant’s counsel strenuously contend in their motion for a rehearing that we erred in this holding and cite authorities from other *645states which we think support the view maintained by them. If the precise question has been passed on by any appellate court of this state, it has not been cited, and we know of no such decision. But it has been in other jurisdictions. In Selleck v. Lake Shore & M. S. R. Co., 58 Mich. 195, 24 N. W. 774, the facts are very similar to the facts in the case at bar. Selleck, who was engaged in carrying passengers from a hotel to defendant’s depot, was compelled to stop and wait for a freight train which obstructed the street for more than five minutes in violation of the statute to move on or divide and let him pass, when a passenger train came by, and the blowing of the steam and noise of the cars frightened his horses and they ran away, and he was severely injured. The jury was instructed as follows: “If the defendant did not obey the law, and did obstruct plaintiff’s way there for more than five minutes at a time as complained of, and if the obstruction for the time over five minutes caused the injury, without any contributory negligence on the part of the plaintiff, then the plaintiff should recover. If in consequence of such blockade of the highway, as I have before named, the plaintiff was unavoidably detained and prevented from passing with his team along it to the depot until the passenger train, using the usual signals and making the ordinary noises of moving trains, arrived and passed west, and by reason of this unavoidable detention, and while waiting to pass over the crossing, the plaintiff’s team became by those surroundings frightened and unmanageable, without the fault of the plaintiff, while he was using proper care and skill to hold and control them, and they overset the wagon and ran away, injuring the plaintiff and his property, the defendant must be held liable for the damages ther'eby resulting to him.” The court held that the statutory negligence referred to in the charge in allowing the freight train to obstruct the street was not the proximate cause of Selleek’s injury, and hence the instruction erroneous. Chief Justice Cooley in delivering the opinion of the court said: “The plaintiff had not by his declaration attributed his injury to the illegal detention, and, if he had, it would have been idle; for the particular injury of which he complained, namely, the fright and running away of his horses, could not have flowed from that detention as a proximate cause. The discussion of the question of proximate cause by this court in Lewis v. Railway Co., 54 Mich. 55, 19 N. W. 744, 52 Am. Rep. 790, is so recent and was so full that further discussion now could do little more than, to go over the same ground, and is therefore quite unnecessary.”
In Stanton v. Railway Co., 91 Ala. 382, 8 South. 798, plaintiff was traveling with his horse and buggy, and came to a railway crossing, which he found to be blocked by a train of cars. He waited for half an hour or more for the train to pass, and then his horse became frightened by an engine running up the side track. In holding that the fright of Stanton’s horse by the operation of the engine and train on the side track was only the remote consequence of the obstruction of the crossing, the Supreme Court of Alabama, speaking through Mr. Justice Coleman, said: “It is a general principle that the wrongful and negligent acts complained of must be the efficient cause of the damage sustained. Whether directly or indirectly, the damage must be the natural consequences of the wrong. 5 Amer. & Eng. Enc. Law, 5. The fright of the horse and its running away was not the natural consequence of permitting the cars to remain on the crossing. This may have contributed remotely to that result by the delay of the plaintiff until another train reached the spot, but the efficient cause which frightened the horse, and made it run away, was the ‘blowing off steam’ and ‘unusual noise’ of the train which came up while plaintiff was waiting to cross. The damages resulting from the fright of the horse were too remote as a consequence' óf the obstruction of the public road to be visited upon the defendant corporation for that cause. We do not hold that a railroad may not be responsible for wrongfully or negligently delaying a person at a crossing, but the damages in such case must be the natural consequence of the delay, and not those produced- by a subsequent, independent, intervening, and efficient cause.” We think the cases from which the foregoing quotations are made state the law correctly upon the question we are considering, and should govern its decision. The obstruction of the street crossing by appellant’s train as a ground of negligence which together with the alleged negligence of appellant’s servants in running the other train up the side track would have authorized a recovery by the ap-pellee, if such acts and conduct proximateiy caused his injury, is clearly and distinctly submitted in the court’s charge. In so submitting the case, the trial court evidently entertained the view that the obstruction of the street crossing and the operation of the train on the side track could properly be considered as concurring proximate causes to which the injuries sustained by the ap-pellee might be attributed, and we at first took this view of the matter; but that a concurring cause of an injury, in order to constitute actionable negligence, must have prox-imateiy contributed to such injury, cannot, we think, be questioned. That the obstruction of the street crossing over which appellee desired to cross by appellant’s train was not such a concurring cause in producing ap-pellee’s injuries is affirmed by the eases above referred to, in which we concur, and we erred in the original opinion in holding to the contrary.
It is further contended, in effect, that the evidence was insufficient to warrant a finding *646thát the defendant’s servants were guilty of such negligence in running the train on the side track as to render defendant liable for the damages sustained by the plaintiff as a result of his horse becoming frightened at said 'train. This question is not specifically raised by any assignment of error found in appellant’s brief, and, in view of the fact that the case will be reversed and remanded for a new trial on other grounds, it will be sufficient to state what we conceive the law to be with reference to the care required of the operatives of railroad trains at public crossings to avoid injuring persons using or about to use such crossing. The law upon this subject is, as we understand it, that, while it is the duty of the servants of a railway company to keep a lookout for persons about to use a public road crossing or street to avoid a collision with them, they are not required to keep a lookout to discover horses that may be in close proximity to such crossings to avoid frightening them by the usual and necessary noises incident to a moving train. This is not true, however; if they undertake to make unusual and unnecessary noises. In' Railway Company v. Boesch (Sup.) 126 S. W. 8, the rule is stated thus: “It is the right of the servants of a railroad company to move their trains with the usual and necessary noises, without keeping a lookout for frightened teams along the track. But, where they undertake to make unusual and unnecessary noise at crossing of a public road or street, they should exercise circumspection, and see that there are no teams in position to be frightened by such unusual sounds.” If, however, the servants of -a railway company discover that a horse or team hitched to a buggy or other, vehicle near its track is becoming frightened at the train, they must refrain as much as possible from making any noise that is calculated to increase the fright of the animal, and, if necessary to .avoid a collision, to stop the train as promptly as the same can be done, consistent with the preservation of the train and the safety of' those on board, by the use of all the means at hand. And, while the sounding of the whistle and ringing of the bell of the engine is required at certain times and places, yet the doing of either should be refrained from when it is discovered that teams have or will become frightened thereat and probably do injury. Railway Co. v. Edwards (decided by this court, Jan. 7, 1911) 134 S. W. 264. On the other hand, the failure to give the statutory signals at the times and places required will constitute negligence and a person injured as a proximate result thereof may have his action against the railway company for such damages as he sustains on account of such negligence.
It is further contended by appellant that the court erred in refusing to give the following special charge'requested by it: “Ton are instructed the plaintiff has not pleaded as an act of negligence of the defendant that defendant’s employés discovered the peril of thé plaintiff in time to have avoided the injury to plaintiff, if any, and failed to do so, and you will therefore not find against the defendant for so failing, even though you may believe it so failed, if you so believe.” We disposed of the assignment presenting this contention in the original opinion by saying that the court did not charge the jury at all upon the subject of discovered peril, and therefore we presumed no such issue was raised by the evidence. We will now state that we are inclined to think that the allegations of the appellee’s petition are sufficient to present the issue of discovered peril, and that appellant’s motion for a rehearing points out evidence which authorized the submission of that issue as one of fact for the determination of the jury. We are still of the opinion, however, that, inasmuch as the court failed to submit the issue of discovered peril at all, such issue was thereby practically withdrawn, and that we ruled correctly in overruling appellant’s assignment of error complaining of the court’s re-fpsal to give its charge upon that subject.
The record further indicates that upon another trial it may become an important issue in the case whether or not the servants of the railway company were guilty of negligence proximately causing the appellee’s injuries in running the train on the side track at a greater rate of speed than. allowed by the ordinance of the city of Mt. Calm.
Appellant’s motion for a rehearing is granted, and the judgment of the court below is reversed and the cause remanded.