
    James H. Albee, Resp’t, v. The Chappaqua Shoe Mfg. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    I. Nuisance—Steam whistle.
    A person has no right to do upon his own premises an act which de* tracts from the safety of travelers or renders the highway disagreeable.
    2. Same.
    Defendant’s factory is close to a railroad depot, and is furnished with a powerful steam whistle elevated but little above the depot platform. While plaintiff was getting milk cans at the depot the whistle suddenly-sounded three times, frightening plaintiff’s horse, which ran away and injured him. Held, that defendant was liable and that the question of plaintiff’s negligence was immaterial
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    
      Glose & Robertson (H. D. Donnelly, of counsel), for app’lt; Wm, P. Fiero, for resp’t.
   Barnard, P. J.

The defendant, a manufacturing corporation, had a steam whistle on its factory at Ghappaqua. The factory is close to the Harlem R R. station and the platform for the delivery and receipt of freight from the railroad is but a few feet from the engine room of the factory, and the engine room is so low that the whistle is but a slight elevation above the platform. The whistle is one of great power and from its name seems to have been constructed to carry sound seven miles. While the plaintiff was at the station in. a wagon with one Williams, who was getting his milk cans, at nearly 1 o’clock P. M., the whistle sounded. The horse ran away; the whistle again sounded, making the horse more uncontrollable, and the whistle again sounded and the horse became so wild as to be ungovernable. The plaintiff was thrown out and severely injured. The complaint avers a cause of action for negligence and one for maintaining a whistle so powerful that its noise was dangerous at the place it was used. The case was tried on the latter cause of action only. The action was well proven. It is an acknowledged principle of law that a party has no right to do upon his own premises an act which detracts from the safety of travelers or renders the highway disagreeable. Francis v. Schoellkopf, 53 N. Y., 152; Heeg v. Licht, 80 id., 579; Bohan v. Port Jervis Gas Light Co., 122 id., 18; 33 St. Rep., 246.

These cases also settle the question that the negligence of the injured person has no importance. The action rests upon the wrong done and not the negligent manner in which it was done. The numerous exceptions taken to the rulings upon the trial excluding the question of the negligence of the plaintiff, all became unavailing under these cases. These exceptions must fail because of an entire lack of evidence upon which to rest a claim that plaintiff contributed to his own injury.

The judgment should therefore be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  