
    Charles Lewis, Appellant, v. The Ballston Terminal Railroad Company, Respondent.
    
      Negligence—use of a steam, locomotive in the construction of an electric railroad— horse frightened by escaping steam.
    
    Evidence that a corporation, organized 'for th6 purpose of operating an electric railroad, permitted a steam locomotive which it used, without statutory-authority, in the construction of its road, to stand upon its tracks in a narrow part of a highway, is, in an action brought to recover damages for personal injuries sustained by the plaintiff inconsequence of his horse being frightened by the escape of steam from the locomotive, sufficient to warrant a jury in finding that the corporation was guilty of negligence, and imposes upon it the duty of establishing that the locomotive was necessarily placed in the position in which it was, and did not unreasonably interfere with the right of the public.
    Appeal by the plaintiff, Charles Lewis, from a judgment of the County Court of Saratoga cpunty in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 25th day of May, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1899, dismissing the complaint upon the merits.
    
      Frank H. Brown, for the appellant.
    
      Horace E. McKnight and James W. Verbeck, for the respondent.
   Putnam, J.:

The action was brought by the plaintiff to recover damages for injuries sustained by reason of his horse becoming frightened by a steam locomotive of the defendant, standing on the defendant’s railroad track in the highway at Milton Center, Saratoga county, which locomotive was at the time blowing off exhaust steam. The case was presented on the theory that defendant had violated the statute and created a nuisance in the public highway.

The defendant was organized as a domestic railroad corporation, for the purpose of building and operating a railroad by electricity, from Ballston Spa to Middle Grove, in Saratoga county, N. Y. By its articles of incorporation' it was not authorized to use any other motive power than electricity for any purpose, and no authority was given to it to use a steam locomotive on said railroad.

The defendant, in the course of the construction of' its road, without any statutory authority therefor, used a steam locomotive, and temporarily placed it on a narrow part of the highway, along which the plaintiff was' proceeding. Whether the locomotive so placed was calculated to frighten horses, and whether it did produce the injury for which the plaintiff sought to recover, was a question of fact for the jury. (Tinker v. N. Y., O. & W. R. R. Co., 71 Hun, 431; 157 N. Y. 312.) In the case cited, it appeared that the defendant was the owner of the land over which the highway passed, and had temporarily placed thereon some sticks of timber near the traveled' part of the road, which frightened the plaintiff’s horses. The plaintiff obtained a judgment; which was sustained by the General Term and the Court of Appeals. In that case it was said (157 N. Y. 318): "The primary purpose of highways is use by the public for travel and transportation, and the general rule is that any one who interferes with such use commits a nuisance.” In the same case, in the opinion published in 71 Hun, 434, the following language is used: “ An object in a public street which is of such a form or character that it is calculated to frighten horses of ordinary gentleness, is an obstruction in the nature of a nuisance; and any one who so places or maintains it is ordinarily liable. for the consequences likely to arise. (Stewart v. Porter Mfg. Co., 13 N. Y. St. Repr. 220; Eggleston v. Columbia Turnpike Road, 18 Hun, 148, and cases cited; Wood on Nuisances, §§ 295, 297; 1 Thomp. on Neg. 349 ; Whart. on Neg. § 983.)”

The defendant in placing the locomotive, which it had no statutory authority to use, on the highway, interfered with the use of such highway, and committed a nuisance, unless it was made to appear that the obstruction was reasonably necessary in the construction of its road and did not unreasonably interfere with the rights of the public. (157 N. Y. 319, supra.)

Had the case been submitted to the jury, a finding would have been authorized that the defendant placed on the highway an obstruction calculated to frighten horses, and which did cause the injury to the plaintiff for which he sought to recover, in this action. It would, however, have been, an answer to the plaintiff’s claim if it had been shown that the placing of said engine on the highway was reason^ ably necessary in the doing of its work, and did not unreasonably interfere with the rights of the public. The defendant offered no evidence, and we are of opinion that that produced by the plaintiff did not authorize the trial judge to determine as a matter of law that there was a reasonable necessity for the obstruction. It is well settled that where a party places an obstruction' in the highway the question whether there was a reasonable necessity or not is one of fact for the jury. (Tinker v. N. Y., O. & W. R. R. Co., supra; Callanan v. Gilman, 107 N. Y. 360; Flynn v. Taylor, 127 id. 596.)

The steam engine was on the track of the defendant in the highway. It had the right, by its charter, to use cars propelled by electricity at said place on its track, but no right to place thereon a dangerous steam locomotive calculated to frighten horses and to render the highway dangerous to those lawfully proceeding thereon. The plaintiff having shown that the defendant, without being authorized by its articles of association to do so, placed in a narrow part of the highway a dangerous obstruction, it was for the defendant, if it could, to show the necessity for using said locomotive and allowing it to stand in such a position as to frighten teams proceeding in the highway.

We think, therefore, that the trial court erred in granting defendant’s motion for a nonsuit.

We think the complaint, as amended on the trial, was sufficient, and that, under the evidence, the question as to the plaintiff’s contributory negligence was for the jury.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.  