delivered the opinion of the Court.
This is an action for damages for personal injuries. There was a trial before a jury, and a verdict and judgment for $5,500, and the railroad company has appealed and assigned errors.
The facts, so far as necessary to be stated, are that the plaintiff, a young lady, was returning from Murfrees-boro to her home, in the country. Her route was along one of the streets of the city which lead into a turnpike road. This route crossed a number of switch tracks of defendant company. Plaintiff was in a buggy, and was driving a horse which was considered safe, gentle, and roadworthy, and was accustomed to trains. In crossing these tracks, the horse became frightened, as is alleged, at an unusual puffing of steam by an engine near the crossing, but concealed from her view. The horse ran away, the buggy was overturned, the plaintiff was thrown out, was rendered temporarily unconscious, and was quite painfully and seriously injured.
It is alleged in the declaration that the company was negligent in permitting, obstructions in the shape of piles of 'lumber upon its right of -way, and near to and upon its tracks, which so obstructed the view of plaintiff that
The plaintiff’s version of the accident, which, under the finding of the jury, must be taken as correct, states that, as the plaintiff approached the crossing, a switch train passed, going south, and that when it had nearly cleared the road it returned across it to the north, and passed behind some piles of lumber very near the track, and out of her sight. At this crossing there were three tracks which were in use for passing, and one not used, called a “dead track,” for holding cars. Plaintiff stopped her horse when about two or three yards from the first track, and waited until the engine, with two freight cars attached, crossed her road, and, turning back, went behind the piles of lumber between the tracks, until lost to sight. She waited until she deemed they had gone a reasonably safe distance, when she started to cross the tracks. When she reached the third track, on which the train was being • operated, the engine gave
’ It is shown that there was nothing-in the grade of the track, or in its condition, or in the make-up of the train, which made it necessary for it to emit any unusual noises. There was no heavily loaded train, there was no steep grade, the track was not slippery, there was nothing to cause a sliding of the wheels, or the emission of any large amount of steam, or the making of any unusual noises. The charge in the declaration is that the engine was negligent in emitting and discharging steam, making an unusual noise calculated to frighten horses, and that it was hidden from view, was very near the crossing, and was managed in such a negligent manner that the plaintiff’s horse took fright and ran off. It is charged that the negligence of the defendant was aggravated by the surroundings at the crossing; that there
Without passing upon the assignments of error seria-tim, we consider the eighth assignment of error, which raises the question whether and to what extent a railroad company can place or permit obstructions upon its right of way which cut off the view, and render the run-, ning of trains more dangerous than if such obstructions did not exist. Upon this feature of the case the court charged the jury that “it was the duty of the railroad company to use such means as were under its authority and control to prevent any obstruction from being placed at or near its switch tracks that would prevent persons traveling upon the streets or roads from seeing or discovering any danger that would naturally arise from their being suddenly placed in too close proximity to its cars and engine.” In the same connection, the court told the jury that this duty applied to obstructions upon the right of way of the company, or territory that belonged to it or was under its control. We think a railroad company may use its right of way for any legitimate railroad purpose, and may place or pile lumber or other material upon it; but, when it does so, it must adopt all precautions necessary to prevent such obstructions from
As we understand the charge of the court, the court-instructed the jury that the railroad must keep all obstructions off of its right of way which would prevent persons from seeing or discovering dangers that would naturally arise from coming suddenly in too close proximity to the engine and cars. From this charge we think the jury might have inferred that the railroad company had no right to put or permit any obstructions on its right of way that would shut off the view of passers, Whereas the company had the right to use its right of way for the storage of freight or lumber, or for the standing of cars, or for the erection of sheds, station houses, or buildings necessary for its purposes, or in any other legitimate way to forward or accommodate its own business; and the law in such case would impose upon the company such increased care as the surroundings and conditions would make necessary.
In Sherman & Redfield on Negligence (5 Ed.), section 478, it is said: “The traveler’s view of a railroad track is often obstructed by the natural formation of the land, by the growth of trees, by'the erection of buildings, by trains standing on side tracks, or by other hindrances,
In Cordell, Administratrix, v. N. Y. C. & H. R. R. R. Co., 70 N. Y., 119, 26 Am. Rep., 550, it is said, among other things: “The company has a right to use its own lands for any legitimate purpose in the prosecution of its business: Such a use cannot be said to be unlawful or negligent, although it may obstruct to some extent the view, of those who cross the track. A railroad corporation has in this respect the same right as individuals. They are under no legal obligations to refrain from using their property because such use may hinder the view of travelers.”
The maxim that one is bound to so use his own property as not to hinder others is not applicable. The injury is remote- and incidental., and not within the contemplation of the rule. If it was, the erection of de
In Dillingham et al. v. Parker (Tex.), 16 S. W., 335, the court said: “There was also evidence to show that there were cars standing upon a side track, near the crossing, in such position as to obstruct not only the view, but also the noise, of the approaching train.” It was held that the court improperly charged the jury that it was the duty, of those operating railroad locomotives and cars to use reasonable care to not permit the view of the track to become obstructed with cars standing upon the side track, so that persons passing along public roads or streets could not conveniently hear a
The headnote in Guggenheim v. Lakeshore R. Co., 33 N. W., 161, is as follows: “While a railroad company is not guilty of negligence in leaving its freight cars standing upon a side track near a street crossing, yet when they are so placed as to cut off the view of approaching trains, and make it more difficult for persons going over the tracks to see the approach of trains, such placing of cars imposes upon it the additional duty of giving such additional warning as the danger thus increased may require.” “We think that the general rule is that a company may place its cars on its side track, and may collect material near its tracks and on it right of way, and keep them there as long as its business may require.” Wabash R. Co. v. Hicks, 13 Ill. App., 407; Chicago R. Co. v. Nelson, 59 Ill. App., 308. This view we do not understand to be in accord with the view and holding of the learned trial judge, and in his holding we think there is error.
The ninth assignment of error is based upon the following part of the charge of the court: “If you find from the evidence that the plaintiff did receive injury and damage as claimed, by the reckless and unnecessary fault of the defendant, as explained to you in these instructions, then you estimate from the proof the amount
The real basis of damages in a case like this is compensation for the injury sustained, but the trial judge does not state this principle, but tells the jury more than once that they are to give the plaintiff what, in their opinion, she is entitled to, or what they, in their opinion, think right and proper in the case. He should have explained to the jury what was right and proper, and that what she was entitled to was compensation for the injuries she had sustained. The jury should have been told that
We are of the opinion that there is error in the action -of the trial judge upon the two features referred to, •and they are material features in the case, and the cause must therefore be reversed and remanded for a new trial. Appellee will pay the costs of the appeal.