
    The St. Louis & San Francisco Railroad Company v. F. R. Ogg.
    No. 14,849
    (89 Pac. 1133.)
    
      Railroads — Injury to Traveler — Instructions. In an action, to recover for injuries to a traveler, whose horse was frightened by steam emitted from defendant’s’engine, there was no error in refusing to give instructions in effect already given.
    Error from Johnson district court; Winfield H. Sheldon, judge.
    Opinion filed March 9, 1907.
    Affirmed.
    
      L. F. Parker, S. T. Seaton, and I. P. Dana, for plaintiff in error.
    
      Ogg & Scott, for defendant in error.
   Per Curiam:

While F. R. Ogg was attempting to' cross the right of way and tracks of the St. Louis & San Francisco Railroad Company at a' public crossing in Johnson county an engine which was standing about 150 feet north of the crossing emitted steam, which so frightened his horse that it ran away and threw Ogg out of the cart, causing him to sustain serious injuries. In an action against the company judgment was rendered in favor Of Ogg, and the defendant prosecutes error.

The plaintiff introduced some evidence tending to prove every material allegation of his petition; therefore the court committed no error in overruling the defendant’s demurrer to the evidence or in refusing to instruct the jury to return a verdict for the defendant.

The petition charged that it was the steam from the cylinder-cocks low down on the engine that frightened the horse, and the court instructed the jury that they must find that the steam which frightened the plaintiff’s horse escaped from the engine in the manner alleged in the petition or they should find for the defendant. In view of the allegation in the petition and this instruction it was not prejudicial error to refuse to instruct the jury that if they found that the steam which frightened plaintiff’s horse escaped from the top of the engine he could not recover.

The defendant was not prejudiced by the refusal to give the following instruction: “I charge you that if you find from the evidence that the injury to the plaintiff was caused by the engine and employees of the Missouri, Kansas & Texas railroad, you must find for the defendant.” This question was fully covered by instructions given, in which the jury were informed that they must find that the engine that emitted the steam which frightened plaintiff’s horse was the engine of the defendant and was in charge of its servants and employees, and that the steam was permitted to escape by the defendant’s employees, without any necessity therefor, and heedlessly, negligently and uselessly done and permitted to be done by them.

An examination of the other assignments does not disclose anything prejudicial to defendant.

The judgment is affirmed.  