Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-09-09
SUPREME COURT DECISION.
CONTINUED from page A.

SUPREME COURT DECISION.
CONTINUED from page A.
will not endanger people travelling on
the street for the purpose OF calling.
dismissing or notifying its employees,
is not assailed or denied. That the
company man operate its machinery
with all necessary fixtures and appii-
ances is conceded but this right
must be exercised with reasonable
care and so as not to injure or lmper'l
the safety of others. Streets are
for the use of the public for travel and
transportation. The harm and dam
age lies in the sounding OF whistle
of unusual and unnecessary loudneSs
and discordance in such proximity TO
a frequented thoroughfare as TO
frighten horses of ordinary gentleness
when rightfully driven there. Loco
motive whistles are usually blown al
long distances from crossings to warh
and alarm before the bell can be
heard when nearing the track peo-
pie with teams are generally on the
alert with ear and eye to detect the
whistle, noise or coming of trains and
on their approach either turn away
or have their horses under tight rem
and better control than usual or Is
to be expected or required when dr1y-
ing in other places. In travelling the
street away from the crossings driv-
ers are not so liable to expect and
guard against the frightening of
horses by whistles of exceptional
volume and discordance. If the use
of such be proper on locomotives, as
we'll as of foghorns at lighthouses, it
is not necessary to maintain either on
stationary engines so near to the
street as to endanger people driving
horses of ordinary gentleness. There
is a place, as well as time. for
everything under the sun. Whether
the appellant maintained and blew
whistle that was unnecessarily alarm
ing and a menace to defendants right
to drive an ordinary gentle horsa
along the highway undisturbed., and
which occasioned the accident and in
jury he sustained, were questions of
fact for the jury Topeka Water Co.
VS.. Whiting, So 1Aan 642:
Hill v. P. r. r. Co., IS Me, 1442
In the latter case the court said:
@The whistle seems to be particularly
adapted to give notice. of the ap-
proach of trains to crossing of a
highway The object then is to warn
all persons of such approach in sea-
son to enable them to stop at safe
distance and thus avoid the risk OF
collision and alarm to horses"
To maze the instruction law it was
not necessary for any other court or
legislature to have approved a simi
lar one. AS new conditions and ci--
cumstances arise in the affairs of me ~
decisions based on reasons and jus
tice must be made and prOmulgated
to meet them This theory and eas
ITCHY has long been the boast of thu
common law. BY way of illustration
and comparison the court assumed
and stated that the purpose of loco
motive whistles was to brighten ant
alarm. matter of common knowledge
and of which proof was not necessar,
as claimed by counsel.
Still urging that the district couc
erred in admitting evidence tina
another horse had been frightene'
at different time by the blowing |,
the whistle, appellant brings to GU
attention the case of Cleveland Ry. VS.
Wynant, ia Ind. SIS, Am st. F
GA, in which admission Of proof tina
other horses had SHE'D at freight car
on the crossing was held to be error
This decision has been criticised a.
a refutation of it's own reasoning an
is not in accord with the weight c
authority. In addition 10 Knight v:
Goodyear Co., SO Conn 442, cited il
the opinion, numerous cases hold thq
the fact that other horses were alarm
ed or SHE'D has tendency to sho,
the frightening character of the oil
ject, and these decisions also indicat
the liability for damages resultin
from accidents arising under circuu
stances similar to those existin
here
In Hill VS.. Portland and r. R. I
Co. S. Me. 40, plaintiff. driving
quiet horse, stopped near the eros
ing because the train was at the 4
pot, the engine being only fifteen {
twenty feet from the highway as /
did not think it prudent to pass: tn
engineer, according to the custom {
the road, sounded the whistle twie
very sharply and briefly; the hor>
suddenly turned and threw the plat
TIL out OF his carriage; the compan
was held liable for his injuries; prot
SAAdI IhC SOuuuiuS Oh the whistle 1a
a similar effect on other horses W.
received to show its tendency; an
the maxim $50 use your own propert
as not to injure the rights of others
was applied
In Gordon vs.. Boston and Maine !
r. So N. H. 396, plaintiff was drivir
about twenty feet from the crossin
when steam was allowed to oscar
suddenly from the locomotive on
side track about two rods from til
highway. The noise frightened th
horses and they overturned the ca
riage. The court refused to instru
the jury that the defendant was NJ
liable for an injury from the frigl
of the horses in consequence of tt
ordinary or necessary, or reasonab
use of the locomotive upon its ON
land not in the highway, but charge
that the company in the manageme1
OF its engines and machinery We