The evidence excepted to was, that horses of third persons had been frightened by the defendants' locomotives and cars at the place of the accident, without other evidence of the defendants' negligence at the time. The particular negligence alleged and relied on by the plaintiff, in this case, was the defendants' permitting steam to suddenly escape from a locomotive standing near the crossing, whereby the plaintiff's horse was frightened and an injury resulted.
Evidence that other horses, driven by other persons at other times, had been frightened by the same or a similar object, or by a sound produced in the same or a similar manner, was admissible to show that the object or sound was dangerous to the public travel, as being more likely than otherwise to produce the result complained of. Darling v. Westmoreland,52 N.H. 401; Gordon v. B. M. Railroad, 58 N.H. 396. The case does not show that the evidence excepted to was that of other horses being frightened by the escape of steam from a locomotive, but by locomotives and cars passing upon the railroad near the place of the injury.
In Darling v. Westmoreland, the plaintiff was permitted to show that other horses were frightened at the same pile of lumber which produced the particular fright occasioning the injury. In Gordon v. The Railroad, evidence that other horses were frightened by the same or a like use of a locomotive as that which caused the injury, was admitted; and in Rowell v. The Railroad, supra, evidence that locomotives scattered sparks and coals was decided to be competent and relevant on the question whether the particular fire was set by sparks or coals from a locomotive. In State v. M. L. Railroad, 52 N.H. 528, neglect of the engineer to give the warning whistle on approaching a highway crossing, was made evidence on the question of the particular negligence, at a different time, alleged as the cause of the injury; and in Hall v. Brown, 58 N.H. 93, the usage of railroad agents and servants in managing cars standing on or near a crossing was admitted to show the probable management of the same cars at the same place at the time in question.
The evidence excepted to was not evidence of other horses' being frightened at the sound of escaping steam, nor at the sight of the vapor produced by it. Evidence of fright produced in horses by the sight or sound, or sight and sound, of a locomotive and cars passing on a railroad, could not be evidence on the question of whether or not the plaintiff's horse at another time was frightened at the sound of steam escaping from a locomotive stationary on the *Page 189 track. Nor could the defendants' negligence in managing a locomotive and cars moving on the railroad, at or near a crossing, be evidence of negligence or mismanagement in respect to steam escaping from a locomotive not moving. The facts shown by the excepted evidence were too unlike those alleged in the declaration to be evidence of negligence in the particular case.
The instruction to the jury, that it was the duty of the defendants to have warned the plaintiff of the danger, if it was dangerous to pass at the time by reason of the proximity of the locomotive to the crossing, although the engineer was in no fault in the management of his locomotive, was, in effect, an instruction that if a locomotive there blowing off steam was dangerous to the travel, it was, as matter of law, negligence on the part of the defendants not to have warned the plaintiff of her danger. It was the duty of the defendants to use ordinary care in the management of their locomotives and cars at or near the crossing, whether moving or stationary; and for any injury to the plaintiff resulting from such want of care, they were liable. Whether it was dangerous to the public travel for the locomotive standing where it did to make sudden emissions of steam, and if dangerous, whether there was want of reasonable care in the defendants' failing to seasonably warn the plaintiff of the danger, were questions of fact to be determined by the jury upon all the evidence. If the noise of the escaping steam was frightful to horses of ordinary gentleness, it was the duty of the defendants to use reasonable care to prevent injury; and if the exercise of reasonable care, under the circumstances, required warning in some manner to the plaintiff, then it was the duty of the defendants to give the warning. Whether a failure to give the warning was want of reasonable care, was a question for the jury to decide; and the instruction that the duty existed if the locomotive standing there was dangerous, was error. Hill v. P. R. Railroad, 55 Me. 438; Norton v. Eastern Railroad,113 Mass. 366; Penn. Railroad v. Barnett, 59 Penn. St. 259. The verdict is set aside, and
A new trial granted.
CLARK, J., did not sit: the others concurred.