
    Lottie Doll, as Administratrix, etc., of Joseph Doll, Deceased, Appellant, v. The Lehigh Valley Railroad Company, Respondent.
    
      Negligence — a horse being driven without any vehicle along the side of a railroad, which becomes frightened and rushes upon the track, followed by the driver, who is killed—a question is presented for the jury.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant operated a double-track steam, railroad at grade upon a street running east and west in. the city of Buffalo, on each side of which tracks there was a paved roadway much traveled, about ten feet in width; that, as one of its locomotives, drawing a single car, was moving backward in a westerly direction on the northerly track, the plaintiff’s intestate came out of a driveway on the north side of the street, driving a horse unattached to any vehicle towards the west; that, as the locomotive-approached the horse from behind, the horse became frightened and dashed upon the railroad track some ten or fifteen feet ahead of the locomotive; that the plaintiff’s intestate retained his hold upon the reins and followed the horse-for some twenty-five or thirty feet, when he was struck by the locomotive and almost instantly killed.
    There was evidence that the engineer of the locomotive stood looking -towards the east; that he did not at any time see the intestate or his horse, and that the engine could have been stopped almost instantly by the use of the emergency-brake.
    
      Held, that it was error to dismiss the complaint;'
    That,- under the circumstances, the questions of the defendant’s negligence and! of the intestate’s freedom from contributory negligence were questions of fact for the jury.
    
      Appeal by the plaintiff, Lottie Doll, as administratrix, etc., of Joseph Doll, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of September, 1899, upon a dismissal of the complaint.by direction of the court after a trial beforg the court and a jury, and also- from an order entered in said clerk’s ■office on the 20th day' of September, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    Scott street is one of the public streets in the city of Buffalo, and upon the surface thereof the defendant. operates a double-track steam railway at grade.
    The street runs east and west and upon either side of the defendant’s tracks is a paved roadway which is about ten feet in width and in constant use. . ■ .
    The plaintiff’s intestate, Joseph Doll, was employed at Holmes Mills as a driver, and in the early morning , of June 18, 1899, he was seen to come out of a driveway upon the north side of Scott street, on foot, driving a horse unattached to any vehicle. As he came upon the street a locomotive drawing a single car was moving backward in a westerly direction upon the northerly track of the defendant’s road. When Doll reached the end of the driveway he turned his horse to the west and started to drive in that direction upon the right-hand side of Scott street. At this time the engine was east of the driveway, but very soon the horse became frightened at the noise caused by its approach, and, after making several jumps and plunges, dashed upon the railroad track some ten or fifteen feet ahead of the' engine. Doll, in his effort to control and manage the horse, retained his' hold of the reins and followed on behind for some twenty-five or thirty feet, when he was struck by the locomotive and almost instantly killed;
    About 450 feet east of the driveway Scott street is intersected and crossed by Chicago street, and about 220 feet west of' the driveway by East Market street. Between these two streets the defendant’s tracks are perfectly straight and there are no intervening objects to obstruct the view.
    
      Eugene M. Bartlett, for the appellant.
    
      Martin Carey, for the respondent.
   Adams, P. J.:

The learned counsel have attempted to fortify their respective contentions in this case by a liberal citation of authorities which tend, as it is claimed, to establish the law applicable to actions of negligence arising out of circumstances similar to those which we have detailed ; but it does not require a very close or critical examination of these authorities to make it perfectly evident that, aside from certain well-settled' general principles, it is practically impossible in eases of this character to lay down any rule of unvarying and universal application.

It may be said, by way of illustration, that a railroad company must at all times and in all ¡daces exercise a reasonable degree of care in the management of its business, and especially in the propulsion of its engines and ears. But what would answer this requirement of the law in one place and under certain conditions might amount to negligence almost bordering upon recklessness in another' place and under different circumstances. In short, as has been so often asserted, no hard and fast rule can be invoked which will fit all cases, and this is a fact which may well be borne in mind in connection with the consideration of the case under review.

It is conceded by the plaintiff that the defendant was rightfully upon Scott street and entitled to operate its railroad through the ■center thereof; and upon the other hand, we assume that it will not be for a moment denied that the plaintiff’s intestate had an equal right to be in the street and to use it for the very purpose for which he was using it at the time he met his death. But while this privilege was common to both parties, it carried with it a duty which was reciprocal in its nature' and obligatory upon each. In other words, the defendant had no right to run its locomotives and cars through the street at such a rate of speed or in such a reckless or careless manner'as to endanger human life; and the plaintiff’s intestate had no right to interfere in .any manner with the passage of the defendant’s engines and cars over the street, or to walk or drive over and upon its tracks regardless of the danger which might reasonably be apprehended from an approaching train.- Whether or not this-obligation was'fully met and actually, fulfilled,by the respec- ' tive parties in the present instance was the real question in the cáse, and it was one which, under all the circumstances, we are inclined to think should have been submitted to the jury.

Scott street, it seems, is “in the heart” of a large'and thriving city; and being located in the vicinity of a market, it is a. thorough-: fare much traveled. It, goes without saying, therefore, that .the defendant was bound to exercise a high degree of care in its use' of the street ( Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420, 429).; and if it fell short of fulfilling this duty in the management of its engine upon the occasion in question it was liable for the consequences which resulted solely by reason of such omission.

The evidence Upon the part of. the plain tiff tends to show that the engineer in charge of this engine, instead of keeping á watchful-eye upon the street and track in front of his moving engine, stood facing the east; and it is undisputed that he did not at any timé see Doll or his horse, and in fact did not know that an accident had happened until notified thereof, by a person upon the street. Moreover, it appears that Doll was not struck until his horse had dragged him some twenty-five or thirty feet along:the track upon which the. engine was approaching ; that the engine was moving along at such a rate of speed that it could have been stopped almost instantly if the emergency brake had been applied, and that it was actually thus stopped when the engineer learned what' had occurred.

We do not wish to bé understood as intimating that it is the duty of a railroad company to stop its trains every time a horse is driven along.a highway by the side of them,, or is attempting to cross in front of them, even though the animal may show signs of fright and appear unmanageable; but what we do say is' that an engineer who-is operating a locomotive upon the surface of a street in a populous city- is under, some obligation to be watchful of his surroundings and careful to keep his engine under such control that he may be able to stop itih.the'shqrtóst'possible time in such an emergency as presented itself-upon the occasion-in question. Upon the evidence disclosed in the record before us, we think a jury might have found that this was not done, and that had it been done the accident might, and probably would, have been avoided,

■■So far as thé-remaining question is concerned, we fail to see how it can be said; 'as mattér of law, that the plaintiffs intestate was guilty of contributory negligence.

As has already been stated^ he was rightfully upon the street with his horse, and when the latter took fright he was not bound to drop the reins and let him go. Indeed, it may be said that it was his duty to endeavor by all reasonable and proper means to guide and control him, and when the horse plunged upon the track,' dragging his driver after him, it was not required of the latter that he should exercise the most perfect judgment in the face of the danger which confronted him.

The law is not so exacting as this, but it declares that, in such circumstances, it is for the jury to determine whether a person acts negligently or otherwise. (Heath v. Glens Falls R. R. Co., 90 Hun, 560, 562; Smith v. N. Y. C. & H. R. R. R. Co., 4 App. Div. 493.)

Our conclusion of the whole matter, therefore, is that the nonsuit . was improperly granted, and that the judgment and order appealed from should be reversed.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.  