
    WATSON VS. PHILADELPHIA & TRENTON R. R. CO.
    A runaway horse crossed the railroad in front of a passenger train on a wagon road which had three outlets. The engineer was not bound to stop his train because the horse might take that branch of the road which . recrosséd the track.
    Error to District Court of Philadelphia. No. 123 July Term, 1869.
    The son of plaintiff in error drove his horse to the Tacony station of defendant with a passenger. The horse became frightened at the passenger train and ran away, along the public road ahead of the train. This road is in sight of the track and crosses it twice in about one hundred yards. At the first crossing the engineer allowed the horse to pass in front of him, but then turned on the steam; and the engine struck the horse at the second crossing. During the trial plaintiff proposed to ask a witness whether “the horse took the road that any horse would probably take.” The following question was also asked : “If the engineer had exercised reasonable caution and care would this accident have occurred.” The Court ruled out both questions, and directed a non-suit. Watson then took a writ of error complaining of the rejection of the testimony offered and the non-suit.
    
      B. Woodward and W H. Waxler, Esqs. for plaintiff in error
    argued that it was the duty of the engineer to keep the train under control when he saw that the horse was running away and on the highway which crossed the railroad track,' and cited: Beatty vs. Gilmore, 16 Pa. 468; Huyett vs. Railroad Co., 23 Pa. 374; Pittsburg vs. Grier, 22 Pa. 67; Reeves vs. Delaware, L. & W. R. R., 30 Pa. 464; McCully vs. Clarke, 40 Pa. 406; Sullivan vs. Phila. & R. R. R., 30 Pa. 239; Rauch vs. Lloyd, 31 Pa. 370; Pennsylvania Railroad Co. vs. Ogier, 35 Pa. 71; Philadelphia and Reading Railroad Co. vs. Spearen, 47 Pa. 300; Smith vs. O’Connor, 48 Pa. 218; North Pa. R. R. Co. vs. Heileman, 49 Pa. 63; Pennsylvania Railroad Co. vs. Henderson, 51 Pa. 317; McGrew vs. Stone, 53 Pa. 443. It was the duty of the company to. control their engines carefully; Frankford and Bristol Turnpike Co. vs. Philadelphia and Trenton Railroad Co., 54 Pa. 345.
    
      Rawle, contra.
    
   The Supreme Court affirmed the judgment, of the District Coui’t on February 28, 1870, in the following opinion per:

Agnew, J.

We discover no error in the bills of exception, or the non-suit. Whether the horse took the road he probably would take, was a question for the jury, to be determined upon the circumstances, rather than upon the mere opinion of the witness as to what a horse might. do. The question was" very indefinite and not founded on the facts. We cannot say there was error in refusing-to allow it to be answered.

The train was rightfully travelling the company’s track. But it can scarcely be said that a frightened horse, rushing madly across it, even though in the route of a public highway, is crossing in a proper manner. It would be improper of course to run him down with the engine, or not to take proper precaution' to avoid unnecessary injury. This precaution the engineer took, when the horse first crossed the railroad track by coming to a full stop of his train, before reaching the crossing. But after the horse had crossed, and was passing along a road of three outlets, one of ■which turning off at right angles recrossed the track, it cannot be pronounced evidence of negligence, that the engineer put on a full head of steam to continue his trip. He had a right to proceed, and was not bound to presume that the horse would recross the track within five hundred feet. Whistling was of no importance. . It could be no signal of warning to a horse, and would only have increased his fright if ha were near.

"We discover no evidence of negligence to be submitted to a jury; and the

Judgment is therefore affirmed.  