
    Curtis M. Sheldon, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    December 29, 1911.
    Railroad — negligence — operation of trains on city street — injury by horses frightened by steam from locomotive — erroneous nonsuit:
    Although a railroad company has a right to operate its trains upon a city street and to start and stop them at its station, its use of the street must be reasonable as other persons may lawfully travel upon it.
    Action against a railroad company to recover damages for personal injuries suffered by the plaintiff when a team Of horses owned by him ran away owing to the alleged negligence of the defendant in unnecessarily permitting large quantities of steam to issue from its locomotive when starting it at a station on a city street. Evidence examined and held, that a dismissal of the complaint by direction of the court was error.
    Appeal by the plaintiff, Curtis M. Sheldon, from a judg-' ment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 12th day of April, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 1st day of May, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Giles S. Piper, for the appellant..
    
      Francis E. Cullen, for the respondent.
   Spring, J.:

South Second street is an important street in the city of Fulton, extending in a northerly and southerly direction, and the track of the defendant is laid in said street along its westerly side. Cayuga street intersects South Second street, and the station of the defendant is immediately north of this intersecting street.

On the 21st of March, 1908, the plaintiff, a farmer, drove a team of horses north along the easterly side of South Second street. The horses were about five or six years old, gentle and steady, and plaintiff daily delivered milk to the railroad station with them, and they had never shown any signs of fright when in proximity to trains or engines. He had a lumber wagon containing some apples which he was selling. His wife was with him in the wagon and held the team as he delivered the apples. He stopped his team near the easterly curb in South Second street and carried a crate of apples to the residence of a man named Nelson on the westerly side of the street, leaving his wife in the wagon in charge of the team. As he reached the rear of the house he heard a train coming up South Second street from the north and hurried hack to his horses, taking hold of the reins and standing by their heads. The train stopped at the station.

The plaintiff says the head of the engine was about fifteen or twenty feet from him, although the weight of the evidence is that the distance is considerably greater than his estimate. As the train started up a large volume of steam, with an unusually loud hissing noise, escaped from the engine, frightening the horses, causing them to run, and the plaintiff was thrown down and very seriously injured. He testified: I was standing nearer the curb than the tracks. I had turned the horses’ heads off toward the curb. I stood in front of one horse. I stood toward the railroad tracks from that horse, so that I was between the team and the tracks. I was in front of one of the horses. When the train pulled up it blew off this steam when it started. The train started and this steam came right out all at once and the team jumped. That is all I can remember at that time. I was thrown. It came right out in a volume, passed by me, went all over, the team and me too. The team ran up in an alley between two buildings. I landed by the side of the street.” And again: “ It came out from the side in a large volume. It seemed to come out and spread as it came. It came fast, all to once. It came right out against me and the team. When that came out there and came over me I could not look through the steam and see the engine. I was blinded by the steam. I couldn’t see through it.”

The witness Nelson testified that the steam came from cylinder cocks on the engine and out on the sidewalk. While he later testified that he was not certain that the steam came through the cylinder cocks, he said it escaped from under the steam chest behind the front wheels of the engine.

Mrs. Sheldon, the wife of the plaintiff, gave this description: When the train started the steam came out. It came out like a loud hissing noise down to the ground, just behind the cowcatcher on the side of the engine, on my side. When I saw it it looked like pencils; went right down to the ground; this was when it started; it came down to the ground and then it would rise; cover us; I couldn’t see; that is, when it got up to me it covered me. It covered my husband and the horses. It came out in a cloud. The thing that it came out of was just on the side of the engine, back of the cowcatcher; well, I should say a little over' the front wheels. It was round; kind of long. It did not come out as one continuous burst of steam; it came a loud hissing noise and a breaking, then again a loud hissing noise. The horses started when the steam struck them. ”

An engineer of long experience, testifying as an expert, said that the steam came either from open cylinder cocks or leaking cylinder heads. He also testified that it was unnecessary to have these cylinder cocks open in order to start the train.

The fireman on the train testified on behalf of the defendant and did not claim it was necessary to open the cylinder cocks to move the train, although it was going up grade; but he testified that these cylinder cocks were not open and that no unusual or unnecessary amount of steam escaped, nor did any puff out on these horses. ,

According to the testimony of the plaintiff and his witnesses the jury might have found that an extraordinary quantity of steam escaped from the engine, enveloping the team of the plaintiff and accompanied with an unusually loud hissing noise.

The defendant certainly had a right to use the street in the operation of its trains. It was obliged to stop them at the station, and in starting this train and operating it the emission of some steam and the making of some noise were inevitable. It must, however, be borne in mind that South Second street was also used rightfully by the plaintiff, and the use by the defendant must be reasonable in view of the fact that others were lawfully traveling upon it. (Doll v. Lehigh Valley R. R. Co., 52 App. Div. 575.)

In Sherman v. N. Y. C. & H. R. R. R. Co. (137 App. Div. 880), recently decided by this court without an opinion, the plaintiff went with a horse and buggy to the railroad station of the West Shore railroad at Jordan, and as she was near the engine' of a train which had just arrived steam escaped from under the cab of the engine with a aloud roaring noise,” causing her horse to run, and he was stopped by some bystander. She started him along again and the steam and noise continued with great force,” frightening the horse so he ran and sheered • out to one side, throwing out and injuring the plaintiff. She was nonsuited at the Trial Term and the judgment was reversed by this court.

In Felkel v. Syracuse, Binghamton & N. Y. R. R. Co. (132 App. Div. 946) the plaintiff’s horse, standing in the street, was frightened by the escape of steam from the defendant’s engine with a loud noise, and ran away. Both the horse and sleigh were injured and a recovery was sustained by this court.

There are other authorities sustaining the same principle. (Lenhart v. New York, L. E. & W. R. R. Co., 19 Wkly. Dig. 17; affd., 98 N. Y. 635; Stamm v. Southern R. R. Co. of Long Island, 1 Abb. N. C. 43,8.)

If the train was operated in the usual way, and in a reasonably careful manner, as the jury might have found from the testimony, the defendant is not hable. If, however, there was an excessive amount of steam allowed to belch forth with a loud noise, frightening the horse of the plaintiff, then a cause of action is made out. It is not so important where the steam was emitted, or. how the noise was made, provided they were extraordinary and unnecessary and caused the horses to beconie frightened.

. The judgment should be reversed.

All concurred.

J udgment and order reversed and new trial granted, with costs to appellant to abide event.  