
    Nettie Ochiltree v. Chicago & Northwestern Railway Co., Appellant.
    Negligence. It is held that the court should not have allowed jury to find that an engineer was negligent for simply whistling “off brakes.” Ochiltree v. R’y, 93 Iowa, 628, followed.
    
    
      Appeal from Audubon District Court. — Hon. N. W. Macy, Judge.
    Thursday, January 31, 1895.
    Action to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.
    
    Reversed.
    
      Hubbard & Dawley for appellant.
    
      Nash, Phelps & Green and If. U. Picnic for appellee.
   Kinne, J.

I. The negligence charged in this case is in carelessly and negligently blowing the whistle of the engine three or fonr sharp blasts, thereby wantonly causing the team plaintiff was driving to take fright and become unmanageable, throwing plaintiff from the buggy and inflicting, upon her painful and permanent injuries. The answer is a general denial. The case arises out of .the same facts as that of O. M. Ochiltree against this defendant, 93 Iowa, 628, which was an action by the husband to recover for loss of the wife’s services; the present action being brought by the wife for damages sustained by her. A careful examination of the record in both cases shows that the evidence in both is substantially the same, except that in the present case the testimony on ©art of the plain l.iff lends more strongiv u. «how dial there were from Ihree to five blasts of the whistle -blown imihediately preceding the accident. The questions raised by this appeal and which demand our attention arise upon the action of the court in giving and refusing instructions.

The two cases, 'it will he observed were tried 'before different judges, and in this ease a verdict was returned for the plaintiff.

II. The instructions in this ease are voluminous and it is not practicable to set them out in full. Appellant contends that the court erred in giving the seventh, eighth, ninth, tenth, and eleventh -instructions in permitting the jury to find that the engineer was negligent even if they found -that the only whistling done at the crossing was t.o give the usual signal for “off brakes,” because, there was nothing in the behavior of the plaintiff or her team to indicate that danger might result or the team be frightened by -the giving of such signals. We think the complaint is well founded. All of the evidence showed that up to the time' of the accident the team was fully under the control of plaintiff, that the horses were gentle, that there was nothing in their conduct to lead the engineer, as a reasonably prudent man to believe that the blowing of the whistle would frighten them.

The doctrine announced in the first, fourth, fifth, seventh, and 'fourteenth instructions asked was correct and in accord with the rule laid down in the opinion in the other case heretofore referred to. We need not here give reasons for our holding, as this same question is fully considered in the opinion in the case of the husband ■decided at this term to which reference is made. It is true thait the court in this case did in some of his instructions lay down the correct rule, but in every such instance he preceded or followed it with language which, 'it seems to us was inconsistent with the rule thus announced. In other words the effect of the correct rule as given was destroyed by the several qualifications attached to it. ‘In as much as our views are so fully expressed In the. case referred to, ■and the evidence so far as it relates to this matter is the same in both eases, we need not give this case further consideration. For the reasons given the judgment below is reversed.  