
    C. P. Gibbs vs. Chicago, Milwaukee & St. Paul Railway Company.
    March 17, 1880.
    Negligent Sounding of Locomotive Whistle in City.— The evidence in this case was sufficient to warrant the trial court in sending it to the jury and to uphold the verdict.
    Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. There was evidence at the trial tending to prove the following facts: The plaintiff was employed to carry a load of goods from the warehouse of one Dodge, on Plum street, a much frequented street in Red Wing. On reaching the warehouse, in company with Dodge, he found that access to it was obstructed by freight cars on the track of defendant’s railroad. A detached engine of defendant was standing about 125 feet off, and Dodge went to it and asked the engineer to move the cars. The engineer expressed a reluctance to do so without orders from the yard-master, and, after looking out of his cab in various directions for that officer, and without moving his engine, suddenly pulled the whistle of his engine, causing it to sound four or five times. The witness Dodge testified that he thought tlie engineer whistled as loud as he could, and another witness testified that the whistle was such as is used to drive cattle off the track. The engineer testified that he blew the whistle to call the yard-master; that it was the usual way of calling him; that he blew several short calls in rapid succession. The plaintiff’s mules, which were gentle and not easily frightened, were so frightened by the whistle that they became unmanageable, and ran away, throwing plaintiff out of his wagon, whereby he was severely injured. Another team standing near was also badly frightened. The engineer might easily have seen the plaintiff’s team, which was crossing the track on Plum street when the whistle sounded, and he knew that Dodge wished to have the cars moved, in order to get freight out of his warehouse for a team. The court refused to direct a verdict for defendant, and left the case with the jury, who found a verdict of $1,100 for plaintiff.
    
      Smith é Hale, for appellant.
    
      Taylor & Sperry, for respondent.
   Berry, J.

The plaintiff alleges in his complaint that the defendant, by its agents and servants in charge of a locomotive, carelessly, negligently, wantonly and recklessly caused the whistle thereof, to be furiously blown off with a frightful noise near the plaintiff’s team of mules, which was passing along a, public street, and thereby frightened the same so that they ran away, throwing the plaintiff out of his wagon, whereby he was greatly injured, etc. The case was submitted to a jury, by which a verdict was brought in for the plaintiff. The important question upon this appeal is whether there was evidence sufficiently tending to prove the alleged negligence to warrant the court below in sending the case to the jury, and to uphold the verdict. Upon a careful perusal of the settled case, we think this question must be answered in the affirmative.

Order affirmed.  