140 Mass. 79 | Mass. | 1885
As the plaintiff was driving his horse along a highway parallel to and adjoining the defendant’s railroad, his horse was frightened by the smoke from the engine of a train passing on the railroad in a direction opposite to that in which the plaintiff was going, and the plaintiff was injured in consequence. After the plaintiff’s evidence was all in, the court ruled that there was no evidence for the jury; and the plaintiff excepted to the ruling. The evidence is not stated in the exceptions, but a full report of it is annexed and referred to in them. It does not appear upon what ground the ruling was placed, or what questions of law were intended to be presented. It is not a case where a single question of fact involving a single proposition of law is presented upon evidence stated in the exceptions; but all the testimony applicable to distinct questions of fact, and
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. Favor v. Boston Lowell Railroad, 114 Mass. 350. 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 adjoined 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. The evidence showed that frequent firing up was necessary for the practicable running of trains. The exceptions state that “the plaintiff also offered evidence which he claimed tended to prove that an engine drawing a train of cars could be run from half a mile to a mile without firing up, and that, if any space of half or three quarters of a mile was known in advance where it was not desirable to fire up, it was entirely feasible, and within the power of the engineer or
The plaintiff argues that, even if it was necessary to fire up when running near the highway, it was not necessary to do so at the particular point where he was; and that the defendant was negligent in not observing him, and avoiding firing up when it would endanger him. 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 being 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 where its use can be avoided, as at stations and highway crossings and in short portions of the railroad near a highway. But we think that the right to fire up an engine at any particular place must depend upon the character of the place, and not upon whether a person happens to be near at the moment. If the defendant had a right to fire up its engine somewhere within the space where its road adjoins the highway, the firing up there is one of the ordinary and necessary incidents of running the train, against which travellers on the
Exceptions overruled.