
    C. M. Ocheltree, Appellant, v. The Chicago & Northwestern Railway Company.
    Negligence:, railroad. In an action for injuries received by plaintiff’s wife while driving in a buggy on a highway running near defendant’s tracks, through the negligent sounding of the whistle on defendant’s engine, whereby the horses became frightened, there was evidence that the engineer had sounded four blasts on the whistle when about forty or fifty rods from the team, and eighty rods from a crossing ahead, toward which.the team was making, and gave one blast for brakes when about five hundred feet from the team, and that the team was not excited thereby; that the team instead of making the crossing, turned into a field, near the track; that, when they were one hundred and twenty feet from the tracks, the engineer again sounded the whistle for a release of the brakes; and that, immediately thereafter, the team became unmanageable. Held, that the last sounding of the whistle, in view of the fact that former whistles had not frightened the team, was not negligence, unless, in the exercise of reasonable prudence, the engineer should have known that the sounding of the whistle at that time would have frightened them.
    Saturday, October 26, 1895.
   Per Curiam.

A petition for a rebearing, and an amendment thereto,- have been filed in this case, assailing the opinion, and particularly so much of it as relates to the charge to the jury. It seems -to be t-he thought of the plaintiff that this- court has -announced the rule that a railway employe in charge of a locomotive is not negligent in blowing the whistle at a railway crossing, when a team of horses is near it, unless he should know, from the conduct of the team at the time, before the whistle is blown, that injury would be likely to result. If such a rule had been approved by this court, there would have been more ground than there is for some of the abjections made, but it has not. What we said1 was that the instructions, taken as a whole, wer-e quite as favorable to the plaintiff as they should have been, and the genera] doctrine of the instructions was approved, , not a® independent istatementis of law, but as applied to the facts in this case. This is especially true of that part of the charge most strenuously objected to. That states thai the act of the engineer, in sounding the whistle to notify the other trainmen to release the brake®, was not negligent, if the evidence showed certain specific facts, “unless it appears from the evidence that, in the exercise of reasonable prudence and judgment, he should have known, from the conduct of the. team at the time, and his proximity to them, that the sounding of the whistle at that time would' probably have the effect to frighten them, and render them unmanageable in the hands of the plaintiff’s wife. It was his duty, and the right of the defendant company to have him proceed with the train with all reasonable diligence. * * *” In the same paragraph of the ¡charge is the following: “Whether the engineer in ¡charge of defendant’® engine blew the whistle, and, if so, the purpose for which it wais blown, and whether ■hils act in so- doing was negligent, are questions of fact, •to he decided by you from all the testimony in the ¡case; but unless isuch negligence is shown by the evidence the plaintiff cannot recover.” By this and other portions of the charge the attention of the jury was .directed to all the evidence in the case. That showed ¡that four blasts of the whistle were given for the crossing eighty rods from it, and forty or fifty rods •from the team; that one blast was given for brakes six •hundred or seven hundred feet from the crossing, and about four hundred or five hundred feet from the team; that when the last blasts were blown the team had been driven into the field at least one hundred and twenty feet from the railway track; that the •horses were not excited, and did not appear to notice ¡the whistle; that they seemed to be fully under the control of the driver. As they had not been alarmed •by 'the whistling nor by the running of the train, there was noi presumption to be drawn, from the ordinary effect of railway whistles on horses, that the team in question would be frightened by other blasts, and the court did not err in instructing the jury that the engineer was not negligent, under the conditions stated in the charge, unless it appeared “that, in the exercise of reasonable prudence and judgment he should have known, from the conduct of the team at the time, and his proximity to them, that the sounding of the whistle at that time would probably have the •effect to frighten them, and render them unmanageable in the hands of the plaintiff’s wife.” “The conduct of the team at'the time,” to which the charge referred, was its- conduct from the first blowing of the whistle to the moment the first of the last blasts was given. Had the last ones only been given, a different case would have been presented, and a different rule would have applied. But the team had been tested to some extent by what bad occurred before the whistle was blown at the crossing, and it was proper for the jury to determine whether the engineer should have known, from the conduct of the team and the proximity of the engine to it, that the sounding of the whistle would probably frighten it and make it unmanageable. 'If the engineer was justified, a-s a reasonably prudent 'man, in concluding, from the conduct of the team, that it would uot be frightened by the giving of signals 'which were required for the proper management of the train, he wasi noit negligent) ini giving them. We think the opinion as filed is correct, and the petition for a rehearing is overruled.  