Mr. Justice Gordon
delivered the opinion of the court, October 5th, 1885.
As there is no evidence that the plaintiff contributed in any degree to the accident which is the subject of this suit, the ■only matter which the case presents for consideration is, whether the evidence produced by the plaintiff justified the .court in submitting to the jury the question of the defendant’s negligence. That is, whether the proofs established any default on part of the railroad company’s servants.
If there were such proofs, we can see nothing in the exceptions on part of the defendant which should induce us to reverse the court below; on the other hand, if the testimony fails to establish such negligence, the case ought not to have been submitted except under instructions that the plaintiff could not recover. It does not matter that the proof of negligence may have been slight, if it exceeded a mere scintilla, for in that case it was properly sent to the jury, and the only remedy for the defendant was an application to the court below for a new trial. Under such circumstances we can grant no relief, and the verdict must stand. Was there, then, in this case, evidence that the accident complained of was produced by the company’s default? We think there was. To start with, the train was in a bad, and unlawful place. It had stopped on the crossing of a much frequented highway, and though before that crossing was reached by the plaintiff the train was cut, leaving an opening of twenty or twenty-five feet, still it occu*231pied one half or two thirds of the turnpike road, which, under the circumstances, it had no right to do. The public was entitled to the whole of the road, and the defendant could not lawfully subject the plaintiff to the risk he must run in the unusual appearance presented to his horse by the position of the cars, andhad the accident happened from this disposition ■of the train, the company would have been unquestionably liable. Of course, we must be understood to speak with reference to the facts of the case in hand;' that there may be occasions when a train may, for a reasonable time, occupy part, or even the whole, of a public crossing, cannot be gainsaid, we only say that such occupancy was not justified by the circumstances here presented. Indeed, Horst says that he stopped and hesitated about passing the cut until he was beckoned on by one of the train hands. Having been thus invited to pass he had no reason to apprehend that anything would be done by the company’s servants to alarm his horse. As he came up every thing was quiet, and there was no good reason why it should, be otherwise, and if some one of the employees chose, just at the critical moment when the horse was between the cars, to shift the‘brakes, and thus cause the rattling spoken of, the jury might well find that this was the immediate cause of the accident. Whilst a railroad company must be allowed the free use of all its rights, yet those rights must be exercised with due regard to the welfare and safety of others: Pennsylvania Railroad Co. v. Barnett, 9 P. F. S., 259. It not only has the right, but it is its duty, to have the whistles of its locomotives blown upon all proper occasions, but not under a bridge over which a traveller is passing with his team. They have the right to blow off their engines through the mud valves, but not at a common crossing; they have a right to stop a locomotive, but not to the windward of a house in process of construction, and which may be burned by sparks issuing therefrom : Turnpike Co. v. The Railroad Co., 4 P. F. S., 345. All these things indicate negligence in the use of a right, and cannot be justified on the ground of the possession of such right, for it must also be used in a lawful manner.
In the present case, the right to screw up or release the ear brakes is not denied, but whether this was done at a proper time and in a proper manner was a question of fact properly determinable by the jury. Negligence, where there is evidence involving it, is always for the jury, and, in this case, we cannot say there was no such evidence.
The judgment is affirmed.