38 Conn. 438 | Conn. | 1871
The gravamen of this action is, that the defendants erected and used upon their own land a steam-whistle of such a character as to frighten horses of ordinary gentleness when passing upon the highway adjoining their land, and that the whistle was blown with such violence when the plaintiff was passing upon the highway, as to frighten his horse and occasion the injury complained of.
The case does not involve the question whether the defendants were entitled to use a steam-whistle instead off a bell on their factory, but whether they were entitled to use such a whistle, within fifty-four and one-half feet of the highway, to make such a dangerous noise as the finding shows was made in this case. I think they were not.
I. It is sufficiently found that the plaintiff’s horse was well broken, kind and gentle in every respect, except that he was easily frightened at unusual noises, especially at steam-whistles. No contributory negligence can be attributed to the plaintiff for driving such a horse upon the highway. Horses and other animals are always frightened by such whistles until they become accustomed to them, and it is not negligence to drive a horse upon a highway, in the course of one’s business, in good faith, where such a whistle may be unnecessarily blown. Such whistles are necessary upon railroad engines, to frighten horses and cattle that may-stray upon the road in front of the engine, and drive them from the track. They are also necessary to give notice of the approach of a train to persons about to cross the track at such a distance that the bell cannot be heard. In" these and other cases, their use upon railroads is important and valuable, and both sanctioned and required by law, and in such cases the usefulness of the
II. It appears from the finding that the whistle in this case was a compound or double whistle, combining a shrill, sharp and piercing sound, with one that was grum and loud; that the combined sound was discordant, startling and terrific, and well calculated to frighten to some extent horses of ordinary gentleness, and had in fact frightened them before at the same place ; that at the time in question the whistle was so blown; and the clear import of the finding is, that although the plaintiff’s horse had been excited by a previous blast from a passing railroad whistle, he was under the plaintiff’s control, and only became unmanageable when this “ terrific” blast was blown from the defendant’s whistle nearly over his head. The injury was the direct result of that blast.
III. There is no principle known to the law which will justify the defendants in the use of such a whistle in such a place. Their right to use a whistle must be conceded, but like all other rights it must be so exercised as not to endanger and injure others. It is no answer to say that they did not erect or blow the whistle for any such purpose, or that they had no knowledge that it frightened horses, or that they did
The Superior Court must be advised to render judgment for the plaintiff.
In this opinion the other judges concurred; except Park, J., who dissented, and Seymour, J., who did not sit.