Mr. Justice Paxson
delivered the opinion of the court, May 10th 1875.
This case presents two questions: The first is whether the engineer of the train was guilty of negligence in blowing the alarm [225]*225whistle; the second, whether the plaintiff below was chargeable with contributory negligence in driving a horse admitted by him to be afraid of the cars, upon Gray’s Ferry road, alongside of the railroad, at the time in question.
Negligence has been defined to be the absence of care, according to the circumstances: Turnpike Co. v. The Railroad Co., 4 P. F. Smith 845. In some cases, the blowing of the steam-whistle of a locomotive has been held to be negligence; in others, the omission to do so has been treated as negligence. Yet there is no want of harmony between these apparently conflicting decisions. The character of the act depends upon the circumstances accompanying it. Thus, it is clearly the duty of an engineer, when his train approaches a public highway, if danger is to be apprehended, to give warning by sounding the whistle, or other sufficient alarm. The failure to do so would be negligence per se. For while negligence is usually a question of fact for a jury, there are some cases in which a court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determinate ; the same under all circumstances. Where the duty is defined, a failure to perform it is of course negligence, and may be declared by the court: McCully v. Clarke, 4 Wright 406. On the other hand, the wanton and unnecessary sounding of the whistle has been held to be negligence. The Penna. Railroad Co. v. Barnett, 9 P. F. Smith 259, illustrates both of the views suggested. In that case, the engineer of the train, having given no notice of its approach, blew his whistle under a bridge whilst a traveller was passing over it, by means whereof his horse toolt fright, ran off, and injured him. It was held, that the omission to give notice by whistling, or other signal, of the approach of the train to the bridge, as well as the blowing of the whistle while the engine was under the bridge, there being no apparent necessity therefor, was properly left to the jury as evidence of negligence.
The plaintiffs in error, having a right under their charter to propel their cars by the use of steam, are not to be held responsible in damages for injuries resulting from the proper use of such an agency. It was held, in The Turnpike Co. v. The Railroad Co., before cited, that a loss of property adjacent to a railroad from the sparks of a locomotive, apart from misuse, is damnum absque injuria. It was said by the present Chief Justice, in delivering the opinion of the court in that case: “The law in conferring the right to use an element of danger, protects the person using it, except for the abuse of his privilege.” It may, therefore, be safely assumed, that the company are not liable for injuries resulting from the use of their cars where due care is exercised. The noise of a rapidly-moving train, as well as the sound of the whistle, may alarm a horse, and cause an accident; whether such accident imposes a liability upon the company to make compensation in [226]*226damages, must depend to a great extent upon the fact whether it was the result of a want of proper care on the part of the persons in charge of such train.
What is proper care cannot be determined by any fixed rule of law. It must depend upon the facts of the particular case. That which would be due care in running a train through a sparsely settled rural district, might be negligence, if not actual recklessness, in approaching a large city. The steam-whistle is one of the recognised methods of signalling the approach of a train. Its universal use upon railroads is a strong argument in favor of its efficiency. It is shrill and piercing; can be heard for a great distance, and can be mistaken for nothing else. Yet it has its disadvantages. More than all other sounds, it is a terror to animals unaccustomed to its warning. Where trains are passing through the built-up portions of towns and cities, it is not needed, nor often used. In such cases they move slowly, and the ringing of a bell sufficiently answers the purposes of an alarm, and is not so likely to frighten horses. But where it is necessary to warn crossings or bridges at a distance in advance of the train, no sufficient substitute has yet been found for the whistle. It can be heard in any condition of wind and weather. In the absence of the discovery of any suitable substitute, and in view of its use upon all roads operated by steam, the mere fact of the whistling furnishes no presumption of. negligence. Was the whistle used in such a wanton manner as to amount to negligence ? The learned judge left this question to the jury. And in so far he was right. But he also left it for the jury to decide whether the use of the whistle at all in that particular place, was negligence. The train had passed beyond the closely built-up portions of the city, which ended at Twenty-eighth street, and there were but few houses between that point and Gray’s Ferry bridge. The engineer whistled about Thirtieth street. The plaintiff says he whistled twice; that the first whistle frightened his horse, and it commenced ■to run; that just as he was getting it under control, there was a second “ blast ” from the whistle, and his horse then became unmanageable, threw him out, and the wagon passed over him. Gray’s Ferry road and the railroad at this point are side by side. The train and the plaintiff were going in the same direction, and at the moment when the accident occurred the train had nearly overhauled him. It was a disputed fact whether the whistle was sounded once or twice in this vicinity. The conductor, engineer and fireman of the train, and other witnesses for the company, testify that there was but one whistle west of Twenty-eighth street. Nor is the plaintiff sustained by all of his own witnesses as to the second whistle.
If the court below had left the jury to find negligence from the use of the whistle the second time, if they believed it to have been [227]*227so used, provided the engineer saw, or with proper care might have seen the plaintiff’s wagon, and that his horse was becoming unmanageable, there would have been no error. But he submitted the case to the jury in such'a way as left them at liberty to find negligence from the use of the whistle once at or about Thirtieth street. It must be borne in mind that the Philadelphia, Wilmington and Baltimore railroad runs along Washington avenue, in this city, until it reaches a point opposite the United States arsenal, situate on the west side of Gray’s Ferry road, between Twenty-sixth and Twenty-seventh streets. It then turns, enters upon the company’s grounds alongside of the Gray’s Ferry road,- and runs parallel with that road a short distance from it, and several feet above its grade, to the bridge over the Schuylkill river. The road makes several curves; one at the arsenal, another just east of Twenty-eighth street, and the third half a square beyond Thirty-first street. These curves are all so decided that the road can be seen for a short distance only beyond them; the Gray’s Ferry bridge and the last two road-crossings being invisible until the last curve has been passed, a point above Thirty-second street. Between Twenty-eighth street and the Schuylkill there are four road-crossings over the railroad, the bridge being about three squares beyond the last crossing.
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Mr. Justice Paxson
delivered the opinion of the court, May 10th 1875.
This case presents two questions: The first is whether the engineer of the train was guilty of negligence in blowing the alarm [225]*225whistle; the second, whether the plaintiff below was chargeable with contributory negligence in driving a horse admitted by him to be afraid of the cars, upon Gray’s Ferry road, alongside of the railroad, at the time in question.
Negligence has been defined to be the absence of care, according to the circumstances: Turnpike Co. v. The Railroad Co., 4 P. F. Smith 845. In some cases, the blowing of the steam-whistle of a locomotive has been held to be negligence; in others, the omission to do so has been treated as negligence. Yet there is no want of harmony between these apparently conflicting decisions. The character of the act depends upon the circumstances accompanying it. Thus, it is clearly the duty of an engineer, when his train approaches a public highway, if danger is to be apprehended, to give warning by sounding the whistle, or other sufficient alarm. The failure to do so would be negligence per se. For while negligence is usually a question of fact for a jury, there are some cases in which a court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determinate ; the same under all circumstances. Where the duty is defined, a failure to perform it is of course negligence, and may be declared by the court: McCully v. Clarke, 4 Wright 406. On the other hand, the wanton and unnecessary sounding of the whistle has been held to be negligence. The Penna. Railroad Co. v. Barnett, 9 P. F. Smith 259, illustrates both of the views suggested. In that case, the engineer of the train, having given no notice of its approach, blew his whistle under a bridge whilst a traveller was passing over it, by means whereof his horse toolt fright, ran off, and injured him. It was held, that the omission to give notice by whistling, or other signal, of the approach of the train to the bridge, as well as the blowing of the whistle while the engine was under the bridge, there being no apparent necessity therefor, was properly left to the jury as evidence of negligence.
The plaintiffs in error, having a right under their charter to propel their cars by the use of steam, are not to be held responsible in damages for injuries resulting from the proper use of such an agency. It was held, in The Turnpike Co. v. The Railroad Co., before cited, that a loss of property adjacent to a railroad from the sparks of a locomotive, apart from misuse, is damnum absque injuria. It was said by the present Chief Justice, in delivering the opinion of the court in that case: “The law in conferring the right to use an element of danger, protects the person using it, except for the abuse of his privilege.” It may, therefore, be safely assumed, that the company are not liable for injuries resulting from the use of their cars where due care is exercised. The noise of a rapidly-moving train, as well as the sound of the whistle, may alarm a horse, and cause an accident; whether such accident imposes a liability upon the company to make compensation in [226]*226damages, must depend to a great extent upon the fact whether it was the result of a want of proper care on the part of the persons in charge of such train.
What is proper care cannot be determined by any fixed rule of law. It must depend upon the facts of the particular case. That which would be due care in running a train through a sparsely settled rural district, might be negligence, if not actual recklessness, in approaching a large city. The steam-whistle is one of the recognised methods of signalling the approach of a train. Its universal use upon railroads is a strong argument in favor of its efficiency. It is shrill and piercing; can be heard for a great distance, and can be mistaken for nothing else. Yet it has its disadvantages. More than all other sounds, it is a terror to animals unaccustomed to its warning. Where trains are passing through the built-up portions of towns and cities, it is not needed, nor often used. In such cases they move slowly, and the ringing of a bell sufficiently answers the purposes of an alarm, and is not so likely to frighten horses. But where it is necessary to warn crossings or bridges at a distance in advance of the train, no sufficient substitute has yet been found for the whistle. It can be heard in any condition of wind and weather. In the absence of the discovery of any suitable substitute, and in view of its use upon all roads operated by steam, the mere fact of the whistling furnishes no presumption of. negligence. Was the whistle used in such a wanton manner as to amount to negligence ? The learned judge left this question to the jury. And in so far he was right. But he also left it for the jury to decide whether the use of the whistle at all in that particular place, was negligence. The train had passed beyond the closely built-up portions of the city, which ended at Twenty-eighth street, and there were but few houses between that point and Gray’s Ferry bridge. The engineer whistled about Thirtieth street. The plaintiff says he whistled twice; that the first whistle frightened his horse, and it commenced ■to run; that just as he was getting it under control, there was a second “ blast ” from the whistle, and his horse then became unmanageable, threw him out, and the wagon passed over him. Gray’s Ferry road and the railroad at this point are side by side. The train and the plaintiff were going in the same direction, and at the moment when the accident occurred the train had nearly overhauled him. It was a disputed fact whether the whistle was sounded once or twice in this vicinity. The conductor, engineer and fireman of the train, and other witnesses for the company, testify that there was but one whistle west of Twenty-eighth street. Nor is the plaintiff sustained by all of his own witnesses as to the second whistle.
If the court below had left the jury to find negligence from the use of the whistle the second time, if they believed it to have been [227]*227so used, provided the engineer saw, or with proper care might have seen the plaintiff’s wagon, and that his horse was becoming unmanageable, there would have been no error. But he submitted the case to the jury in such'a way as left them at liberty to find negligence from the use of the whistle once at or about Thirtieth street. It must be borne in mind that the Philadelphia, Wilmington and Baltimore railroad runs along Washington avenue, in this city, until it reaches a point opposite the United States arsenal, situate on the west side of Gray’s Ferry road, between Twenty-sixth and Twenty-seventh streets. It then turns, enters upon the company’s grounds alongside of the Gray’s Ferry road,- and runs parallel with that road a short distance from it, and several feet above its grade, to the bridge over the Schuylkill river. The road makes several curves; one at the arsenal, another just east of Twenty-eighth street, and the third half a square beyond Thirty-first street. These curves are all so decided that the road can be seen for a short distance only beyond them; the Gray’s Ferry bridge and the last two road-crossings being invisible until the last curve has been passed, a point above Thirty-second street. Between Twenty-eighth street and the Schuylkill there are four road-crossings over the railroad, the bridge being about three squares beyond the last crossing. The bridge is a draw-bridge, a watchman being stationed at each end, for the purpose of flagging the trains, upon being warned by the whistle of their approach. It was the daily practice to blow the whistle at Thirtieth street. The rules of the company require it. We have seen that there were several crossings, as well as the bridge-tender, to be warned of the approaching train. They were invisible by reason of the curves. The engineer had the right, under the circumstances, to blow the whistle in the vicinity of Thirtieth street, sufficiently to give notice of the approach of the train. Its use once, in the ordinary manner, was not evidence of negligence, and it ought not to have been submitted to the jury as such. On the contrary, had he omitted to give such warning, and by reason thereof the plaintiff had been struck and injured by the train, we should have been compelled to say, under the authority of our own cases, that such omission was negligence per se.
It was urged that any use of the whistle at this point was unnecessary, and the fact that it has since been abandoned, was stated as strong evidence in support- of this view. The abandonment, however, was doubtless due in a great measure to the changed circumstances. This locality has been much improved since 1871, and there are many more houses there now than formerly. We have held these corporations to a strict line of responsibility for the failure to give sufficient warning of the approach of their trains at road-crossings. It would not be just to them, nor safe to the travelling public, for us now to criticise too closely the [228]*228precise amount of noise employed in giving the needed warning at such places, or the means of producing it.
There was also error in the answer of the learned judge to the defendant's sixth point. It is true, the law will not banish horses from the highways. It is equally clear that the plaintiff had a right to drive the horse referred to, or any other horse, however vicious, upon the Gray’s Eerry road, at this particular point of danger. We are not dealing with the absolute rights of the parties. The question here is one of prudence and care. When a man drives an unbroken or vicious horse, or one that is easily frightened by a locomotive, along a public road running side by side with a railroad, and liable to be met or overtaken by a train, he does so at his own risk. It is an act amounting to recklessness. That there was no other road for the plaintiff to use, does not matter. There were other horses which he might have procured for use in such a dangerous locality. Duties and obligations are mutual. The railroad company had as high a right to move their trains upon their road as the plaintiff had to drive his horse along Gray’s Eerry road. Both were bound to the exercise of care in accordance with the circumstances of the case.
We do not lose sight of the fact that, in such questions as this, the interests of other parties are concerned. The right of a man to risk his own life, and that of his horse, may be conceded; but not the right, by an act of negligence, if not of recklessness, to place in peril the lives of hundreds of others who may happen to be travelling in a. train of cars.
What we have said, disposes of the third and sixth assignments of error. The remaining assignments are carved out of the two just mentioned, and do not need more specific notice.
The judgment is reversed, and a v.enire facias de novo awarded.