Bourland, Special Judge.
This was a suit for personal injuries alleged to have been occasioned by the negligence of appellant’s employees in charge of a running train. There was a verdict and judgment for $3000 in favor of Lewis, and the appellant seeks a reversal here on the following specifications of error made in its motion for a new trial: (1.) That the verdict is contrary to the law and evidence. (2.) That the court erred in giving to the jury instructions numbered 2, 3, 6, 7, 8 and 9, respectively. (3.) That the court erred in refusing prayers of appellant numbered 2, 3, 4, 5, 6 and 8, respectively. (4.) That the court erred in modifying, and giving as modified, prayer number 2 asked by appellant. (5.) That the verdict is excessive, and not sustained by the evidence.
The case of Railway Company v. Roberts, 56 Ark. 387, is the fruit of the same accident here in controversy; and, in that case, the proof, except as to the person injured, and as to the nature and extent of the injuries, was the same as in'this case. Lewis, appellee, as the result of the catastrophe, was seriously shaken up and painfully jolted, which probably caused a separation of the fibres of the lower abdominal wall, allowing a portion of the intestines to protrude in such a manner as enabled a medical witness to classify the injury as reducible hernia.
Bound north and towards a crossing, Lewis and a companion, in a wagon drawn by a team of mules, were traveling upon a public highway, which, for about six hundred yards, ran on the west of, near, and parallel to appellant’s railway. On the opposite side of the highway from the railway was a farm fence, extending some distance along and near the road, and north of. the crossing. When the travellers had reached a point about 200 yards distant on the highway, there appeared, bound north, on the railway, “a fast freight” train, making about twenty-five or thirty miles an hour. The whistle was sounded for the depot, which is 640 yards south of the crossing, but the train did not stop or check its speed. Some 200 yards north of the depot, at or near “a whistling post,” which was about 400 yards from the crossing, the whistle was again sounded, in four successive and rapid blasts, as a signal for the crossing, and thence continuously sounded until the crossing was reached. There was evidence that when the whistle was first sounded the train was about fifty yards south of the -depot, at which sound appellee’s team became frightened ; that the train came on with whistle sounding, and emitting steam from the steam cocks on the side of the engine next to the highway; that the sound increased the fright of the team, which, in plain view of persons on the engine, had got beyond the control - of the driver, and were running; that the whistling and emissions of steam from the steam cocks were continued until the crossing was reached. There was evidence that when the engine reached the “whistling post,” the team was in plain view, frightened and running, and that they continued to run until they reached the crossing\ where, although appellee was endeavoring to avoid injury, the team rushed upon the crossing, where the engine struck the wagon, and appellee received his injuries. There was evidence, also, that, at about the time the engine reached the crossing, the whistle was sounded for brakes, the engine reversed, and the train brought to a standstill,'some 200 or 300 yards north of the crossing, whilst there was verbal evidence that such a train could not be stopped in a distance less than 600 yards.
By instruction numbered 9, we think the measure of damages correctly given to the jury, and, from the evidence as to the nature of the injury and the resultant suffering, we are not prepared to say that the verdict is excessive.
In the case of Railway Company v. Roberts, supra, this court said: “Whether the injury complained of resulted from negligence upon the part of the defendant was, under the circumstances of the case, a question for the jury. The evidence is sufficient to sustain the verdict.” The term “negligence” is relative, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances confronting them reasonably impose. Mr. Cooley, in his work on Torts, second edition, page 752, admirably defines “negligence.” He there says that it is “the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.”
Appellant’s second, third and fourth assignments of error relate to instructions given and refused.
Instructions given and numbered 2, 3, 6, 7 and 8, respectively, are the same as instructions given in Railway Company v. Roberts, supra, numbered, respectively 2, 3, 10, 11 and 12; and there these instructions, if not all approved, were held not to be unfavorable to appellant; and we think that other instructions asked by appellant and refused were covered by instructions given by the court.
1. Negligence of railway at crossing. Prayer No. 2 asked by appellant, but refused as asked, is as follows: “If the jury find from the evidence that the engineer of defendant’s train was, at the time of the accident, on the lookout, and saw the plaintiff’s team just before and as he started to cross the track, and immediately used every effort in his power to control and check his train, but failed because of the nearness of his train to the team, the court instructs you that there was no negligence on the part of the engineer, and you will find for the defendant on this point.” The court, however, modified the prayer as follows : “Unless you further find that the accident and injury were directly occasioned by the negligence of the engineer in blowing off his steam, and thereby carelessly causing the team to run away;” and gave the instruction as so modified. The instruction as asked was not proper. It took away from the jury the question whether, under the facts presented, the engineer was negligent in blowing off steam, and, if so, whether such negligence was the proximate cause of appellee’s injuries. The instruction, as modified and given, was correct. Norton v. Eastern R. Co. 113 Mass. 366; Lamb v. Old Colony Railroad, 140 Mass. 79; Petersburg R. Co. v. Hite, 81 Va. 767. Lamb v. Ry. supra, was a case where a horse was frightened, and injury resulted from the firing up of an engine at a particular place ; and the court there said that “the act of firing up, like that of sounding a 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 negligence 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 at highway crossings and short portions of the railway near a highway.”
Our statute, it is true, requires certain signals to be made upon the approach to a crossing, as a warning that persons may not come unawares into danger. This requirement of the statute ought not to be, and we think cannot be, held to be so inflexible as, under special circumstances, to contribute to or produce the injury which it is designed to prevent.
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Bourland, Special Judge.
This was a suit for personal injuries alleged to have been occasioned by the negligence of appellant’s employees in charge of a running train. There was a verdict and judgment for $3000 in favor of Lewis, and the appellant seeks a reversal here on the following specifications of error made in its motion for a new trial: (1.) That the verdict is contrary to the law and evidence. (2.) That the court erred in giving to the jury instructions numbered 2, 3, 6, 7, 8 and 9, respectively. (3.) That the court erred in refusing prayers of appellant numbered 2, 3, 4, 5, 6 and 8, respectively. (4.) That the court erred in modifying, and giving as modified, prayer number 2 asked by appellant. (5.) That the verdict is excessive, and not sustained by the evidence.
The case of Railway Company v. Roberts, 56 Ark. 387, is the fruit of the same accident here in controversy; and, in that case, the proof, except as to the person injured, and as to the nature and extent of the injuries, was the same as in'this case. Lewis, appellee, as the result of the catastrophe, was seriously shaken up and painfully jolted, which probably caused a separation of the fibres of the lower abdominal wall, allowing a portion of the intestines to protrude in such a manner as enabled a medical witness to classify the injury as reducible hernia.
Bound north and towards a crossing, Lewis and a companion, in a wagon drawn by a team of mules, were traveling upon a public highway, which, for about six hundred yards, ran on the west of, near, and parallel to appellant’s railway. On the opposite side of the highway from the railway was a farm fence, extending some distance along and near the road, and north of. the crossing. When the travellers had reached a point about 200 yards distant on the highway, there appeared, bound north, on the railway, “a fast freight” train, making about twenty-five or thirty miles an hour. The whistle was sounded for the depot, which is 640 yards south of the crossing, but the train did not stop or check its speed. Some 200 yards north of the depot, at or near “a whistling post,” which was about 400 yards from the crossing, the whistle was again sounded, in four successive and rapid blasts, as a signal for the crossing, and thence continuously sounded until the crossing was reached. There was evidence that when the whistle was first sounded the train was about fifty yards south of the -depot, at which sound appellee’s team became frightened ; that the train came on with whistle sounding, and emitting steam from the steam cocks on the side of the engine next to the highway; that the sound increased the fright of the team, which, in plain view of persons on the engine, had got beyond the control - of the driver, and were running; that the whistling and emissions of steam from the steam cocks were continued until the crossing was reached. There was evidence that when the engine reached the “whistling post,” the team was in plain view, frightened and running, and that they continued to run until they reached the crossing\ where, although appellee was endeavoring to avoid injury, the team rushed upon the crossing, where the engine struck the wagon, and appellee received his injuries. There was evidence, also, that, at about the time the engine reached the crossing, the whistle was sounded for brakes, the engine reversed, and the train brought to a standstill,'some 200 or 300 yards north of the crossing, whilst there was verbal evidence that such a train could not be stopped in a distance less than 600 yards.
By instruction numbered 9, we think the measure of damages correctly given to the jury, and, from the evidence as to the nature of the injury and the resultant suffering, we are not prepared to say that the verdict is excessive.
In the case of Railway Company v. Roberts, supra, this court said: “Whether the injury complained of resulted from negligence upon the part of the defendant was, under the circumstances of the case, a question for the jury. The evidence is sufficient to sustain the verdict.” The term “negligence” is relative, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances confronting them reasonably impose. Mr. Cooley, in his work on Torts, second edition, page 752, admirably defines “negligence.” He there says that it is “the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.”
Appellant’s second, third and fourth assignments of error relate to instructions given and refused.
Instructions given and numbered 2, 3, 6, 7 and 8, respectively, are the same as instructions given in Railway Company v. Roberts, supra, numbered, respectively 2, 3, 10, 11 and 12; and there these instructions, if not all approved, were held not to be unfavorable to appellant; and we think that other instructions asked by appellant and refused were covered by instructions given by the court.
1. Negligence of railway at crossing. Prayer No. 2 asked by appellant, but refused as asked, is as follows: “If the jury find from the evidence that the engineer of defendant’s train was, at the time of the accident, on the lookout, and saw the plaintiff’s team just before and as he started to cross the track, and immediately used every effort in his power to control and check his train, but failed because of the nearness of his train to the team, the court instructs you that there was no negligence on the part of the engineer, and you will find for the defendant on this point.” The court, however, modified the prayer as follows : “Unless you further find that the accident and injury were directly occasioned by the negligence of the engineer in blowing off his steam, and thereby carelessly causing the team to run away;” and gave the instruction as so modified. The instruction as asked was not proper. It took away from the jury the question whether, under the facts presented, the engineer was negligent in blowing off steam, and, if so, whether such negligence was the proximate cause of appellee’s injuries. The instruction, as modified and given, was correct. Norton v. Eastern R. Co. 113 Mass. 366; Lamb v. Old Colony Railroad, 140 Mass. 79; Petersburg R. Co. v. Hite, 81 Va. 767. Lamb v. Ry. supra, was a case where a horse was frightened, and injury resulted from the firing up of an engine at a particular place ; and the court there said that “the act of firing up, like that of sounding a 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 negligence 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 at highway crossings and short portions of the railway near a highway.”
Our statute, it is true, requires certain signals to be made upon the approach to a crossing, as a warning that persons may not come unawares into danger. This requirement of the statute ought not to be, and we think cannot be, held to be so inflexible as, under special circumstances, to contribute to or produce the injury which it is designed to prevent. It is the duty of the engineer to make these signals, and he may presume primarily that teams on near and parallel highways will not take fright at them, and that they will be heeded by persons approaching the crossings ; but he must make the signal in a prudent and careful manner, out of regard for the public safety. If it be apparent that a team on such highway has become frightened at the sound of the signals, and is endangering the safety of an individual, the engineer should change, suspend or stop the sound of the signal, as the circumstances seem reasonably to require, until the team be passed or the danger averted; and if it then appear that, for any cause, a person at the crossing or approaching it on the highway is heedless of, or unable to escape, danger by collision, the engineer, if he can, by the ordinary means at his command, should check or stop his train, as prudence may require; and whether he exercised such ordinary care or prudence in this case was a question for the jury.
2. Negligence teamiffhtemUff Counsel for appellant press another point upon our attention. It is insisted that there was no testimony by any witness that the blowing off of steam at the steam cocks was not, under the circumstances, necessary for the ordinary operation of the train. ‘‘It was not,” say counsel in argument, ‘‘a question about which one witness had testified that it was unnecessary, and another had testified that it was not, and that, therefore, negligence cannot be imputed.” If the jury are to be judges of the question as to whether there was negligence or a want of reasonable care and prudence, what will constitute the one or the other will depend upon the particular circumstances of each case. Hahn v. Ry. 51 Cal. 607; McCully v. Clarke, 80 Am. Dec. 584; 1 Thompson, Neg. 417; Sawyer v. E. S. Co. 74 Am. Dec. 463.
The place, the length and character of -the train, its rate of speed, the view, whether plain or obscured, the fright of the team, its conduct and distance from the crossing, and the distance of the train from the team and the crossing, the purpose and use of steam cocks, the manner and facility of their manipulation, and all other circumstances, may be considered by the jury, in the light of common knowledge, experience and observation. There was'evidence in this case to warrant the jury, in the light of common observation and experience touching steam machinery of the kind mentioned in the evidence, in saying, as they probably did, that the continuous blowing ofE of steam after the engine came into plain view of the frightened and running team was not necessary, but imprudent and careless. 1 Thomp. Neg. 351; Brown v. Griffin, 9 S. W. 546; Davis v. Winslow, 81 Am. Dec. 573.
3. When e gineer negligent in approaching crossing. The court gave an instruction favorable to the appellant, which was to the effect that if the team was frightened only at the statutory signals, made in an ordinarily careful manner, and injury resulted, no liability attached ; but that it was the duty of engineers in charge of trains approaching crossings, or when running near and alongside of a public highway, to use ordinary care to discover travelers on such highway, and to so manage such trains as not carelessly or negligently to injure such travelers. We think this is substantially correct. Louisville etc. Ry. v. Slander, 32 N. E- 209; Rosenberger v. Grand Trunk Ry. Co., 15. A. & E. Ry. Cases, 448.
The engineer is not expected to neglect his other necessary and important duties. His position is one of great importance,' his duties to passengers and property exacting, and great interests — life and property — depend upon their proper discharge; but persons on public highways running near and parallel to the railway and crossing the railway, while acting prudently and carefully themselves, have the right to expect ordinary care and prudence of the engineers operating these dangerous elements. Hill v. Portland Ry. 55 Me. 438; Pittsburg etc. R. Co. v. Gilleland, 56 Pa. St. 450.
On the whole, we see no error to the prejudice of appellant; and, as we cannot say from the testimony, that the verdict is excessive, the judgment of the lower court is affirmed.
Riddick, J., disqualified.