
    Barclay v. Western & Atlantic Railroad Company.
    Argued June 24,
    Decided August 10, 1897.
    Action for damages. Before Judge Milner. Catoosa superior court. August term, 1896.
    Barclay sued the railroad company on account of personal injury sustained by him from a fall from his wagon. He was driving two mules and was sitting on the top of a load of hay with which the wagon was loaded. He was in a road parallel with and about thirty to forty feet from the railroad-track, going in the same direction with a freight-train which came slowly by. This was between a blow-post and a public crossing. He had not heard the whistle blow. He first saw the train when it was about seventy-five yards back. When the engine was about twenty yards from_a point opposite the wagon, the cylinder-cocks were opened, and the noise of the escaping steam frightened one of the mules so that he shied and ran, the other mule also running but not being scared. While this was transpiring the engineer and fireman looked at plaintiff and laughed, but made no effort to stop the noise. While the train ran about three hundred yards the mules ran about two thirds of that distance, and then ran the wagon into a ditch, throwing plaintiff to the ground. He had been working along the road a good deal, and that was the first he ever knew of this mule getting scared. It is necessary on occasion to open the cylinder-cocks, or the steam would blow ■out the cylinder-heads. The noise can be stopped instantly by ■closing the cocks.
   Atkinson, J.

In view of the evidence disclosed by the record, this was a

case for submission to the jury, and not for solution by the granting of a nonsuit. Judgment reversed.

All the Justices concurring.

The court granted a nonsuit,, and plaintiff excepted.

William E. Mann, for plaintiff.

Payne & Tye and R. J. & J. McOamy, for defendant.  