Presby v. Grand Trunk Ry.

• Decision Date: 31 July 1891
• Citation: 22 A. 554,66 N.H. 615
• Parties: PRESBY v. GRAND TRUNK RY.
• Court: New Hampshire Supreme Court

22 A. 554

66 N.H. 615

PRESBY

v. GRAND TRUNK RY.

Supreme Court of New Hampshire.

July 31, 1891.

Exceptions from Coos county; before Justice I. W. Smith.

Action by John Presby against the Grand Trunk Railroad to recover damages for injuries caused by plaintiff's horse being frightened by defendant's locomotive blowing off steam. Judgment for plaintiff Defendant excepts. Exceptions overruled.

James W. Remick and Parsons & Mad den, for plaintiff.

Ossian Ray, Drew & Jordan, and A. A. Strout, for defendant.

CLARK, J. To maintain his action, the plaintiff must show that his injury was caused by the defendant's want of ordinary care. He complains that the defendant was negligent in blowing off steam, and thereby frightening his horse; in not giving notice of the approach of the train by ringing the bell for a distance of 80 rods before reaching the crossing; in leaving boxcars on the side track, one of which was within the limits of the highway, in such a position that the view of the train was obscured; in not having a flagman or gates at the crossing; in placing a handcar and semaphore post in the highway; and in not extending the planking at the highway crossing over the depression at the joint of the rails, and thus leaving the crossing of insufficient width. Having produced evidence tending to establish the matters complained of, the questions of the plaintiff's care, and of the defendant's negligence, were properly submitted to the jury.

The motion that a verdict be ordered for the defendant was based upon the claim that the escape of the steam from the engine, being regulated by an automatic valve such as is generally used by railroad companies, was involuntary, and could not be controlled by the defendant's servants, and therefore the defendant was not chargeable with negligence on account of the noise of the escaping steam, and that the other alleged negligent acts and omissions were too remote and immaterial. The operation of the automatic pop-valve was simply to allow the steam to escape whenever the pressure exceeded 135 pounds. It did not in any way affect the quantity of steam generated. The amount of steam produced was under the control of the defendant's servants in charge of the engine, and the pressure upon the pop-valve depended upon the management of the fire and the condition of the engine as to working steam or standing still. The evidence was that valves of a higher pressure are sometimes used, and it could not be said, as matter of...