
    STAMM v. SOUTHERN R. R. CO. OF LONG ISLAND.
    
      City Court of Brooklyn; General Term,
    
    
      March, 1876.
    Negligence.
    It is prima fade negligent for an engineer of a dummy railroad engine to discharge a sudden jet of steam upon a passing team.
    Whether one driving a horse, accustomed to meet a dummy engine, along the lawful side of a public highway between the railroad track and the curb on meeting such an engine, is guilty of contributory negligence, is a question for the jury.
    Appeal by plaintiff from a judgment of nonsuit, on the ground that he had not shown the negligence of. the defendant, and was guilty of contributory negligence.
    Richard Stamm, the plaintiff, was driving a horse and truck along Broadway, in the city of Brooklyn, on the right hand side of defendant’s track, the space between the track and the curb being thirteen feet. A dummy engine, drawing several cars, was passing up Broadway, and, according to plaintiff’s testimony, just as the dummy was alongside of the horse, the bell rang, and the engine let off steam. He says “ the steam came from the dummy, from the side, squirted right out.” As the steam escaped, the horse suddenly jumped back, bringing the wagon into collision with one of the cars, by which the plaintiff was thrown out and seriously injured. The plaintiff, on the trial below, was nonsuited on the ground that he had not shown negligence upon the part of defendant.
    
      Dailey & Perry, for appellant.
    I. Unless the evidence is clear and undisputed, and so entirely fails to make out a cause of action that different minds may not come to opposite conclusions, the court should not nonsuit the plaintiff (Borst v. Lake Shore & Mich. S. R. R. Co., 4 Hun, 346; Gonzales v. N. Y. & H. R. R. Co., 39 How. Pr. 407; Wooden v. Austin, 51 Barb. 9 ; Ernst v. H. R. R. Co., 35 H. Y. 10; Bridges v. The N. Lond. Rw. Co., 30 L. T. N. S. 844; 10 Alb. L. J. 464).
    II. The plaintiff was not guilty of contributory negligence, and the accident having happened by the negligence of the defendant, he is responsible for the damages (Eckert v. L. I. R. R. Co., 57 Barb. 555 ; Fero v. Buffalo & State Line R. R. Co., 22 N. Y. 209 ; Eldridge v. L. I. R. R.'Co., 1 Sand/. 89 ; Buel v. N. Y. C. R. R. Co., 31 N. Y. 314).
    III. Plaintiff had a right to suppose the dummy would be managed as on former occasions, and defendant had no right to let off a jet of steam while passing along a public street, so as to endanger life (Borst v. Lake Shore & Mich. S. R. R. Co., supra; Lenton v. Gunther, 4 Hun, 141; Beisigel v. N. Y. C. R. R. Co., 34 H. Y. 623).
    IV. The court should have compelled the defendant to disclose any palliating circumstances, if there •were any, and submit the whole evidence to the jury (Ernst v. H. R. R. Co., supra; Penn. R. R. Co. v. Kilgore, 32 Penn. R. 292; Keller v. N. Y. C. R. R. Co., 2 Abb. Gt. App. Dec. 480 ; Johnston n. Hudson R. R. Co., 20 N. Y. 66).
    
      Hinsdale & Sprague, for respondent.
    I. The ringing of the bell is a statutory duty, and the letting off steam from an engine is not such negligence as to render the railroad company liable for accidents resulting from fright to horses, caused thereby (L. 1854, c. 282, § 7; Bhearm. & Bed. on Neg. § 486; Burton r. Phil., Wilm. & Balt. R. R. Co., 4 Harring. (Del.) 252 ; Moshier v. Utica & Sch. R. R. Co., 8 Barb. 427; Coy v. Same, 23 Id. 643 ; Rood v. N. Y. & Erie R. R. Co., 18 Id. 81; Field v. N. Y. C. R R. Co., 32 N. Y. 339, 350; Steinweg v. Erie R. R. Co., 43 Id. 123).
    II. It was not the act of a prudent man to place himself unnecessarily in a position between the track and curb, especially when sitting upon a high seat, from which a slight concussion would be apt to dislodge him (Morris v. Phelps, 2 Hilt. 38).
   Reynolds, J.—[After stating the facts.]

We think if the' learned judge had had the opportunity of analyzing the evidence as it is now presented to us, he would have come to a different conclusion.

The sudden discharge of steam, under such circumstances as above stated, would be clearly an act of gross negligence, unless it was unavoidable, or necessary, at that precise time, to the safety of the engine. Even upon a thoroughfare in the city, there must be sufficient opportunities to permit an occasional escape of steam, without discharging it directly upon a passing team, and it is the duty of the engineer to seek such opportunity. Defendant’s counsel argued strenuously, that it was incumbent upon the plaintiff to 'show that the escape was not unavoidable, or necessary, at that moment. We think, rather, it was for the defendant to show why it was done at that moment. The engine was traveling along its regular course, and „if, while it was running, it was necessary to emit a sudden jet of steam, the engineer should have explained why he did not do it before or after the instant he was passing plaintiff’s horse. It was prima facie a negligent act, and the burden of its explanation was upon the party managing the engine, rather than on the plaintiff, who had no means of ascertaining the reason for such an occurrence.

Defendant also insists that the plaintiff was guilty of contributory negligence. There was room for the plaintiff to drive between the track and the curb, by the side of a passing train. On a street as much traveled as Broadway, it can not be unusual for teams to be so driven. The plaintiff says his horse was accustomed to the dummy, and that he had frequently driven him, near it without difficulty. It was for the jury to say whether plaintiff, under the circumstances, was wanting in ordinary prudence.

A new trial should be granted, costs to appellant to abide the event.

Neilsoh", Ch. J., concurred.  